Jti& 




Glass. 
Book 







. 



SELECT SPEECHES 



OP 



JOHN SERGEANT. 



SELECT SPEECHES 









JOHN SERGEANT, 



OF 






PENNSYLVANIA. 



Ehflatoelpnfa: 




E. L. CAREY &. A. HART— CHESNUT STREET. 



1832. 






Entered according to the act of Congress, the 12th day of October, 1832, by 

E. L. Caret & A. Hart, 

in the Clerk's office of the District Court of the Eastern District of Pennsyl- 
vania- 



PREFACE. 



The publishers of this volume present it to the public, 
not merely as a testimonial of their sincere respect for a 
distinguished fellow citizen, but as an offering which they 
know will be most acceptable to the community at large. 
It is an exalted duty to rescue from the precarious tenure 
of ephemeral publications the reputation of an eminent 
man, and with this view they have been induced to cause 
a volume of the public speeches of Mr. Sergeant to be pre- 
pared, in order to give them the permanence they deserve 
to have, and of which, while scattered in detached pam- 
phlets and periodicals, they could not be secure. The 
responsibility of the attempt is altogether with them. It 
was determined on, and has been made without consulta- 
tion with Mr. Sergeant. The materials to which the pub- 
lishers have had access, were scattered through congres- 
sional reports and newspapers, and it has been with some 
difficulty they have been collected. They are believed 
however to be in every respect accurate. 

It was their hope to be able to publish a number of the 
forensic arguments of Mr. Sergeant, as well as his congres- 
sional speeches. In this, they have been, in great measure 
disappointed. The fame of an advocate is too often tra- 
ditionary, and while during his active career his influence 

2 



VI 

is most sensibly felt and readily acknowledged, as soon as 
the personal ascendancy is withdrawn, the charm lingers 
only in memory, and with the life of the last contemporary 
is forgotten. The physical labours of preparing forensic 
arguments for the press is altogether incompatible with 
the unceasing occupation of a professional man in active 
business, and until the science of reporting " speeches" shall 
extend to the judicial as well as the legislative halls, the 
advocate, in a vast majority of instances, must be satisfied 
with the proud distinction of a life of honour and useful- 
ness, and be content, as soon as it terminates, to be forgot- 
ten. The history of the English bar strongly illustrates 
the truth of this assertion. Of all the master-pieces of 
eloquence that have been produced by the great Eng- 
lish lawyers during the last century and an half, but 
one elaborate collection survives ; and no one, especially if 
he be a lawyer, can peruse the volumes of Lord Erskine's 
Speeches without regret, deep regret, that a similar memo- 
rial of some of his predecessors, of Dunning, of Wedderburne, 
of Yorke, of Pratt and of Murray, has not been rescued 
from the grasp of oblivion. It was a remark of Mr. l'itt, 
that were he allowed to redeem from forgetfulness any one 
of those works of genius of which in ancient or modern 
times the fame only has survived, he would select a single 
speech of Lord Bolingbroke, accurately and faithfully re- 
ported, in preference to all the rest. A lawyer might, in 
the same spirit prefer an argument fresh from the lips, or 
corrected by the pen of Lord Mansfield, to any of the obli- 
terated records of departed genius. 

To the American bar, the same remark will as justly 
apply. A recent publication has, in a single instance, 



Vll 

supplied the deficiency, and in a measure done justice to 
one distinguished lawyer of our country ; but with this 
exception, and a few reports of cases selected on account of 
some special public interest, the fame of the American 
lawyer has had no substantial memorial. Detached argu- 
ments of Mr. Sergeant, might have been obtained from 
the volumes of the Federal and State Reports, but on 
examination they were found to be mere sketches, as noted 
by the reporter, and without the least revision. The only 
forensic argument inserted in this volume, is the one de- 
livered by Mr. Sergeant before the Supreme Court of the 
United States in the case of the Cherokee nation, and 
those who heard him on that occasion, or who have ever 
heard him when arguing with his peculiar eloquence a 
cause in which his feelings were deeply interested, need 
not be told how inadequate the report is to his merits, nor 
how strongly it illustrates what has been said of the tran- 
sitory nature of an advocate's fame. It has been inserted, 
however, as the only one which has had even a partial 
revision. Abridged as it is, and divested of all the orna- 
ments of rhetoric, it will be read and admired as a fine spe- 
cimen of argumentative eloquence, having for its object to 
enforce by reason the results of honest and deliberate re- 
flection. It is to be regretted that one other argument of 
Mr. Sergeant, (we refer to the one delivered in the Circuit 
Court of the United States, at Philadelphia, in the Nichol- 
son land case,) should not be given to the public in an ela- 
borate form. It was an effort worthy of the orator and the 
occasion. He was there in the proud attitude of the repre- 
sentative of a great Commonwealth of whose reputation he 
was jealous, and whose legislation he was called on to 



Vlll 

vindicate. He was placed too in the position of an advo- 
cate required to enforce personal rights, and to protect 
private interests, which had been created and had flour- 
ished under the legislation which was assailed. Questions 
were involved that were matters of appropriate considera- 
tion for a statesman, and points of judicial casuistry, on 
which the professional logician might employ all his sub- 
tlety. There were disputed points of municipal regulation, 
and grave questions of constitutional law. They were all 
met ; and in an argument which occupied three days in 
delivery, Mr. Sergeant satisfied the expectation of all, who 
either as friends or clients, watched the progress of the 
cause, and added one more to the many triumphs of a long, 
and honourable professional career. This is not an inap- 
propriate place to express the hope that this argument 
may one day be given to the public in a complete form. 
It has been referred to here, not merely on account of its 
peculiar merit, but as being distinctly within the recollec- 
tion of the profession and the public. 

Nothing would be more unjust than to estimate the pro- 
fessional fame or public services of Mr. Sergeant, by the 
select speeches contained in this volume. The varied 
occupations of his profession, of a practice that for a long 
series of years has been most extensive and laborious, must 
be taken into view, and with them, a constant and active 
participation in almost every scheme of public enterprise 
and beneficence that has been designed within the sphere 
of his influence. His life has been one of constant and 
unremitting labour, in the course of which the least of his 
cares seems to have been the acquisition of mere reputa- 
tion — the greatest, the conscientious performance of duty, 



IX 

and the honest discharge of the obligation which binds 
every man to the community. Those who have watched 
with solicitude the career of a public man thus regardless 
of personal elevation, and insensible to merely selfish im- 
pulses, will understand the mingled feelings of regret and 
veneration which this disinterested and self-disparaging 
conduct inspires. The reputation of a great man, earned 
by a life of usefulness, is, however, the property of the 
nation, and from the press, as the natural guardian of that 
part of the nation's property, much will be expected and 
required. 

This is neither the place nor the occasion, for an elabo- 
rate tribute to Mr. Sergeant's character and services. It 
is as a public man especially that he is now looked to by 
the community with deep and increasing interest, and it is 
with a view to do justice to him in this respect, that this 
volume has been prepared. It is as little suited to the 
occasion, and to the ability of the publishers, to attempt to 
characterise his eloquence, as it has been developed in the 
legislature of the union. The same masculine intelligence 
and comprehensive grasp of mind, which originally gained 
for him professional distinction, enabled him at once on his 
entrance on a new sphere of action, to reach a high and 
proud eminence, which, in the course of a public life che- 
quered by alternate triumphs and reverses, he has never 
abandoned, and which he will occupy so long as rich intel- 
lectual endowment, and consistent patriotism can be appre- 
ciated. 

The American bar has always had, and always deserved, 
an exalted character ; and it is to the public services of 
such men as John Sergeant and his illustrious predecessors 



and contemporaries, mingling from nececessity as well as 
inclination, political with professional pursuits, that thio 
reputation is to be attributed. The bar has supplied the 
most efficient defenders of our free institutions, and should 
the hour ever arrive when civil liberty, as we enjoy it, shall 
be threatened or endangered, it is to the American lawyer, 
conversant by habitual reflection with the eternal princi- 
ciplcs of liberty as applied to the rights of social man, that 
the patriot must look for effectual aid, and by his hand can 
alone be applied what Sir Edward Coke has called " the 
golden metwand" by which the right of the citizen is mea- 
sured, and the authority of the government maintained. 
The active energies of humanity can never sink into " the 
easy trance of servitude,'' while the beacons of the law 
burn brightly, and the restless eye of juridical vigilance is 
unclouded. 



CONTENTS. 



Oration delivered in the City of Philadelphia, on the twenty-fourth 
of July, 1826, in Commemoration of Thomas Jefferson and John 
Adams. ........... 17 

Discourse delivered at Rutgers College, on the fourteenth of July, 

1829 38 

Argument in the Case of the Cherokee nation vs. the State of Georgia, 
before the Supreme Court of the United States, March fifth, 
1S31 VI 

SrEECii on the Bankrupt Bill, delivered in the House of Representa- 
tives of the United States, Tuesday, February 17, 1818. . . 105 

SrEECH on the Bank of the United States, delivered in the House of 

Representatives, February 22, 1819 120 

SrEECH on the Missouri Question, delivered in the House of Represen- 
tatives of the United States, on the eighth and ninth of February, 
1820 185 

Speech delivered in the House of Representatives, March seventh, 1822, 
on the Bill to establish an Uniform System of Bankruptcy through- 
out the United States 257 

SrEECH on Retrenchment and Reform, delivered in the House of Re- 
presentatives of the United States, February second, 1828. . . 324 



ORATION, 

DELIVERED IN THE CITY OF PHILADELPHIA, ON THE 
TWENTY-FOURTH OF JULY, 1826, IN COMMEMORATION 
OF THOMAS JEFFERSON AND JOHN ADAMS. 

FRIENDS AND FELLOW CITIZENS, 

Time, in its course, has produced a striking epoch in 
the history of our favoured country ; and, as if to mark 
with peculiar emphasis this interesting stage of our national 
existence, it comes to us accompanied with incidents cal- 
culated to make a powerful and lasting impression. The 
dawn of the fiftieth anniversary of independence beamed 
upon two venerable and illustrious citizens, to whom, under 
Providence, a nation acknowledged itself greatly indebted 
for the event which the day was set apart to commemo- 
rate. The one was the author, the other " the ablest ad- 
vocate," of that solemn assertion of right, that heroic defi- 
ance of unjust power, which, in the midst of difficulty and 
danger, proclaimed the determination to assume a separate 
and equal station among the powers of the earth, and 
declared to the world the causes which impelled to this 
decision. Both had stood by their country, with unabated 
ardour and unwavering fortitude, through every vicissitude 
of her fortune, until " the glorious day" of her final triumph 
crowned their labours and their sacrifices with complete 
success. With equal solicitude, and with equal warmth of 
patriotic affection, they devoted their great faculties, which 
had been employed in vindicating the rights of their coun- 
try, to construct for her, upon deep and strong foundations, 
the solid edifice of social order and of civil and religious 
freedom. They had both held the highest public employ - 

3 



18 

ments, and were distinguished by the highest honours the 
nation could confer. Arrived at an age when nature seems 
to demand repose, each had retired to the spot from which 
the public exigencies had first called him — his public 
labours ended, his work accomplished, his beloved country 
prosperous and happy — there to indulge in the blessed re- 
trospect of a well-spent life, and await that period which 
comes to all. But not to await it in idleness or indiffer- 
ence. The same spirit of active benevolence, which made 
the meridian of their lives resplendent with glory, con- 
tinued to shed its lustre upon their evening path. Still 
intent upon doing good, still devoted to the great cause of 
human happiness and improvement, neither of these illus- 
trious men relaxed in his exertions. They seemed only to 
concentrate their energy, as age and increasing infirmity 
contracted the circle of action, bestowing, without ostenta- 
tion, their latest efforts upon the state and neighbourhood 
in which they resided. There, with patriarchal simplicity, 
they lived, the objects of a nation's grateful remembrance 
and affection ; the living records of a nation's history ; the 
charm of an age which they delighted, adorned and in- 
structed by their vivid sketches of times that are past ; and, 
as it were, the embodied spirit of the revolution itself, in 
all its purity and force, diffusing its wholesome influence 
through the generations that have succeeded, rebuking 
every sinister design, and invigorating every manly and 
virtuous resolution. 

The Jubilee came. The great national commemoration 
of a nation's birth. The fiftieth year of deliverance from 
foreign rule, wrought out by the exertions and sufferings 
and sacrifices of the patriots of the revolution. It found 
these illustrious and venerable men, full of honours and 
full of years, animated with the proud recollection of the 
times in which they had borne so distinguished a part, and 
cheered by the beneficent and expanding influence of their 
patriotic labours. The eyes of a nation were turned to- 



19 

wards them with affection and reverence. They heard the 
first song of triumph on that memorable day. As the 
voice of millions of freemen rose in sounds of gratitude and 
joy, they both sunk gently to rest, and their spirits departed 
in the midst of the swelling chorus of national enthusiasm. 

Death has thus placed his seal upon the lives of these 
two eminent men with impressive solemnity. A gracious 
Providence, whose favours have been so often manifested 
in mercy to our country, has been pleased to allow them an 
unusual length of life, and an uncommon continuance of 
their extraordinary faculties. They have been, as it were, 
united in death, and they have both, in a most signal man- 
ner, been associated with the great event which they so 
largely contributed to produce. Henceforward the names 
of Jefferson and Adams can never be separated from the 
Declaration of Independence. Whilst that venerated in- 
strument shall continue to exist, as long as its sacred spirit 
shall dwell with the people of this nation, or the free insti- 
tutions that have grown out of it be preserved and respect- 
ed, so long will our children, and our children's children to 
the latest generation, bless the names of these our illustrious 
benefactors, and cherish their memory with reverential 
respect. The jubilee, at each return, will bring back, 
with renovated force, the lives and the deaths of these dis- 
tinguished men; and history, with the simple pencil of 
truth, sketching the wonderful coincidence, will, for once 
at least, set at defiance all the powers of poetry and ro- 
mance. 

The dispensation which has thus connected itself with 
the first jubilee of our independence, mingling with our fes- 
tivities the parting benediction, and the final farewell of 
our two illustrious countrymen, cannot fail to bring with it 
the most serious reflections. Marked, as it is, by such an 
extraordinary coincidence, melhinks it seems to announce, 
with solemn emphasis, that henceforward the care of their 
great work is committed to our hands ; that we are to guard, 



20 

to protect, and to preserve the principles and the institutions 
which they, at such an expense, have established for our 
benefit, and for that of our posterity; and, may I not add, 
for the common benefit of mankind. Of the signers of the 
Declaration of Independence, but one now remains. Health 
and peace to the evening of his days ! The single repre- 
sentative on earth of the Congress of 177G, he seems to stand 
between two generations, and to be the visible link that 
still connects the living with the mighty dead. Of all, in- 
deed, who had a part in the achievement of independence, 
" whose counsels aided, or whose arms defended," few and 
feeble are they who survive. Day by day their numbers 
are reduced ; yet a little while, and they will have followed 
their illustrious compatriots. Not a footstep will be heard 
throughout this land, of all who rushed to danger in their 
country's cause, — not an eye will beam, that borrowed 
prophetic light from afar to illumine the hour of darkness, — 
not a heart will beat, whose pulsation was quickened by 
the animating hope of a glorious triumph. 

To this effect we are admonished by the event we are 
met to commemorate. Here then let us pause ! The point 
of time at which we have arrived, marked by a concurrence 
of circumstances so impressive, demands our earnest atten- 
tion. It stands forth, I repeat, with commanding dignity, 
and seems to say, Behold ! fifty years have gone by. The 
altar of freedom raised by your fathers — the sacred fire 
they lighted upon it — are now, at the appointed time, de- 
livered to you. To you belongs the great trust of their 
preservation, until another generation shall in turn succeed 
to occupy your places, from you to receive the invaluable 
depositc, and with it to receive its guardian spirit, the spirit 
of the revolution. Shall we, my friends and fellow citizens, 
be able to acquit ourselves of this high trust ? Shall the 
next jubilee find the altar pure and undefiled, the fire still 
burning with a steady flame ? And shall every succeeding 
jubilee, like that which has passed, be at once an evidence 



21 

and an acknowledgment of the continuing efficacy of the 
great truths promulgated in the Declaration of Indepen- 
dence? These a.re indeed affecting questions. 

To commemorate the event which has here brought us 
together, and at the same time to invigorate our virtuous 
resolutions, let us, for a moment, look hack upon the lives 
of our two illustrious fellow citizens, who walked hand in 
hand through the struggle of the revolution, and hand in 
hand have descended to the tomb, as if, with one voice, to 
deliver their parting blessing to their beloved country. 

Mine is not the task of the biographer or the historian. 
I am not to enter into a detail of their lives, nor to attempt 
to spread before you a history of the great events in which 
they acted. These are for abler hands, for ampler opportu- 
nity, and more extended labour. Nor is it at all consistent 
with the duty I owe to the occasion, or to you, if it were in 
accordance with my own inclination, or within the scope of 
my humble capacity, to disturb the harmony of feeling that 
prevails, by attempting a comparative estimate of their 
uncommon merits. It is not my office, nor is it your desire, 
to weigh them against each other — to bring them into con- 
flict, when death has sealed for ever the friendship which, 
in their latter years, they so delighted to cherish. A rapid, 
and it necessarily must be a hasty and imperfect sketch 
of some of the principal points in their public career, will 
be sufficient to show how strong is the claim of both to our 
warmest admiration, and to our most affectionate gratitude. 
Extend to me your indulgence, of which I stand so much in 
need, while, in obedience to your commands, I endeavour, 
however feebly, to present such a sketch. 

The attempt of Great Britain to visit these colonies with 
an exercise of power inconsistent with their just rights, 
found our two eminent fellow citizens, each in his native 
state. Mr. Jefferson, a young man, already a distinguished 
member of a legislature, which has never been without the 
distinction of patriotism and talents. Mr. Adams, a few 



22 

years older, successfully engaged in the practice of the law, 
with established reputation and extensive influence. They 
were among the first to discern the character of this arro- 
gant attempt; to rouse their countrymen to a sense of the 
danger of submission ; to animate them to the assertion of 
their rights; and to embark, fearlessly, in resistance to the 
first approaches of arbitrary power. They did not hesitate. 
They never paused to count the cost of personal sacrifice, 
but, with a resolution as determined as it was virtuous, 
placed at once their lives, their fortunes, and all their hopes 
upon the issue of theiir country's cause. 

When these colonies, for mutual support and counsel, 
resolved to convene a general Congress, Mr. Adams was 
appointed one of the deputies from Massachusetts. He 
took his seat on the 5th of September, 1774, the memorable 
day of the first meeting of that august assembly, whose acts 
then were, and since have been the theme of universal ad- 
miration. Indeed it may be truly averred, that as long as 
wisdom, constancy, unconquerable resolution, — as long as 
patriotism, and contempt of every danger, but that which 
threatens one's country — as long, to sum it all up at once, 
as generous and disinterested devotion, guided by talents of 
the highest order, shall be esteemed among men, so long 
will the old Congress continue to retain the first place 
among human assemblies, and spread its lustre over the age 
in which it acted. 

In this same body, Mr. Jefferson took his seat on the 21st 
June, 1775, elected a deputy from Virginia, in the place of 
Peyton Randolph. Of the estimation in which Mr. Jeffer- 
son was held, in that more than Roman Senate, though still 
a young man, probably the youngest in Congress, sufficient 
evidence will presently appear. But in the mean time let 
me mention to you a fact which preceded, a few days, the 
coming in of Mr. Jefferson, and deserves to be remembered 
with gratitude to his illustrious associate. It was John 
Adams, who, on the 15th June, 1775, nominated George 



23 

Washington, " to command all the continental forces raised, 
and to be raised, for the defence of American liberty." It 
was upon that nomination the father of his country was 
unanimously elected. How many reflections are here ex- 
cited ! But we must not now indulge in them. 

This interesting circumstance does not appear on the 
printed Journals of Congress. It would seem to have been 
the practice not to give the names of those who made either 
nominations or motions. But it is slated upon the most re- 
spectable authority, whence also are derived some particu- 
lars which it may not be uninteresting to mention. The 
person who had been previously thought of for this high 
station, was General Ward of Massachusetts. As he was 
of the same colony with Mr. Adams, it must have been a 
sacrifice of feeling thus to pass him by. He generously and 
readily made it to advance the great, good cause. A stri- 
king example of disinterestedness! — Washington, not aware 
of the intention of Mr. Adams, was in his seat in Congress 
at the time of the nomination. The instant it was made, 
he rose and left the hall. A beautiful instance of unaffect- 
ed modesty ! 

But we must not dwell too long on these particulars, 
however delightful and refreshing. The march of events 
was rapidly disclosing the important truth, that submis- 
sion, unconditional submission, or victory, were the only al- 
ternatives. Already had blood been shed at Lexington, at 
Concord, and at Bunker's hill. Already had the freemen of 
America, as if guided by a common impulse, met the vete- 
ran troops of Great Britain in the field, and encountered 
them with a determined courage which nothing but a deep 
conviction of their rights could have inspired. Already too, 
as we have seen, had the Congress appointed the immortal 
Washington to command the troops raised, or to be raised, 
for the defence of American liberty. Already had they de- 
clared with the utmost solemnity, " We have counted the 
cost of this contest, and find nothing so dreadful as volunta- 



24 

ry slavery." Our cause was armed with the triple armour 
of justice ; hut as yet it wanted, perhaps, a more definite 
purpose, a visible standard and a character that should 
give us a station among the nations of the earth. 

On the 7th June, 1776, resolutions were moved respect- 
ing independence.* On the 10th June, a committee of the 
whole reported a resolution; "That these united colonies 
are, and of right ought to he, free and independent states ; 
that they are absolved from all allegiance to the British 
crown ; and that all connection between them and the state 
of Great Britain is, and ought to he, totally dissolved." On 
the same day the consideration of this resolution was post- 
poned to Monday, the first of July ; and it was resolved, 
" that in the mean while, that no time be lost, in case the 
Congress agree thereto, a committee be appointed to pre- 
pare a declaration to the effect of this resolution." On the 
following day a committee was appointed, of which Mr. 
Jefferson was the first named, and Mr. Adams the second. 
The remainder of the committee were Dr. Franklin, Mr. 
Sherman, and R. R. Livingston. The duty of preparing 
the draught was by them committed to Mr. Jefferson and 
Mr. Adams. Thus were they associated in that immortal 
labour. On the 2d July, the resolution of independence 
was adopted, and on the ever memorable 4th July, 1776, 
the declaration reported by the committee, with some 
slight alterations, was agreed to and promulgated. It is 
now a nation's creed. 

There is a point of resemblance, in the lives and charac- 
ters of these illustrious men, which must not be overlooked 
in its bearing upon the present subject. To the natural 
gift of great talents, they had both added the advantages of 
constant laborious culture. They came forward, disci- 
plined and prepared by previous study, for the service and 

* The motion was made by Richard Henry Lee, in pursuance of instruc- 
tions from the Convention of Virginia, and is understood to have been in the 
terms reported by the committee of the whole. 



25 

the ornament of their country. The deep and extensive 
learning of Mr, Adams is familiar to all, and none of us are 
ignorant of the varied and uncommon acquirements of Mr. 
Jefferson. The late venerable Charles Thompson, a chron- 
icle of the times of the revolution, has told me, that he well 
remembered the first appearance of Mr. Jefferson in Con- 
gress; that he brought with him the reputation of great 
attainments, particular^ in political science, which he 
always well sustained. They had both diligently studied 
the history of man and of government. The examples of 
generous devotion in ancient times, inspired their hearts 
with lofty patriotism. The records of ages since, showed 
them how accident, and fraud, and force, had sunk the 
great body of mankind under grinding oppression, justified 
at length by maxims essentially false, but which the solita- 
ry speculations of writers, however undeniably true, were 
unable to correct. Here then, with prophetic wisdom they 
perceived, and blessed be God who put it into their hearts 
to perceive — here they perceived was the great occasion 
which the patriot and philanthropist had rather wished 
than hoped for, at once to fix the end and aim of the revo- 
lution by raising the standard of the rights of man. 

It was no longer a mere contest for separation. National 
independence was indissolubly connected with civil and 
religious liberty. The same venerated instrument that 
declared our separation from Great Britian, contained also 
the memorable assertion, that " all men are created equal, 
that they are endowed by their Creator with certain un- 
alienable rights, and that to secure these rights governments 
are instituted among men, deriving their just powers from 
the consent of the governed." This was the text of the 
revolution — the ruling vital principle — the hope that ani- 
mated the patriot's heart, and nerved the patriot's arm, 
when he looked forward through succeeding generations, 
and saw stamped upon all their institutions, the great prin- 
ciples set forth in the Declaration of Independence. It is 

4 



26 

not a charter — we hold by no charter. Freedom is coeval 
with our national existence, derived to us from no man's 
grant or concession, but received from the Author of our 
being, and secured by the valour, and toil, and blood of 
our ancestors. 

These sacred principles, thus solemnly inscribed upon 
the banner of the revolution, are still borne aloft by the 
strength of increasing millions. They have not been defac- 
ed nor obliterated, nor even their lustre dimmed, by lapse 
of time or change of circumstances. When the war of the 
revolution was ended, and the god of battles had crowned 
our country's cause with victory, the gallant soldier who 
had endured every privation, and exposed himself to every 
hazard in the field, laid down his arms in submission to their 
acknowledged authority. An armed nation which had 
conquered peace in a seven years war, was changed in an 
instant into a nation of citizens; and the men who had 
fought and bled in the cause of their country, were seen in 
the walks of private life, confessing by their conduct, their 
voluntary allegiance to the truths which had been pro- 
claimed on the great day of independence. 

When, from the experience of a few years, the inefficacy 
of the articles of confederation had been demonstrated, 
these sacred principles were solemnly reiterated in the 
introduction of the Constitution of the United States.- They 
are the basis of every state constitution : and, like the air 
that we breathe, they belong to our very existence. He 
would be justly deemed an apostate, and a traitor, who 
should seek to destroy or weaken them. He would be held 
up to opprobrium and scorn, as the enemy of his country, 
and the enemy of mankind. 

Nor has their kindly influence been confined to our own 
country. Throughout the world, the friends and advocates 
of human freedom and of human rights, have found conso- 
lation and encouragement in the example thus set before 
them. The standard was raised for ourselves — but itwas 



27 

raised on high, and it has floated in triumph, visible to the 
nations of the civilized world, for their assurance that man 
is competent to self government. Long established error 
has been rebuked by their practical excellence. Systems 
apparently consolidated by ages, have been modified by 
their influence. A knowledge of the rights of man has 
been universally disseminated. Whenever and wherever, 
hy any crisis in affairs, the people for a moment recover a 
portion of their lost power, their eager demand is for the 
acknowledgment of first principles in written constitutions. 
Whenever a sovereign, alarmed by foreign menace or pres- 
sure, would rouse his people to uncommon exertion, he 
appeals, not to the obsolete errors which he loves too well 
to renounce whilst their preservation is possible ; hut, 
in such an exigency, he is obliged to speak to their own 
sense of their own rights, and to promise to secure them by 
written constitutions. This we have witnessed in our day. 
MonarChs and their subjects have marched forth together 
under this assurance, animated with unwanted energy. 
The last, the greatest, the most powerful incentive to vigor- 
ous exertion, has been found in that knowledge which the 
principles of the Declaration of Independence have diffused 
so extensively. Such promises, it is true, have often 
proved delusive. " Ease would retract vows made in pain." 
But the knowledge exists — the feeling is there — it cannot 
again be smothered or subdued. It will go on, conquering 
and to conquer. At this moment, such has been its mighty 
progress, that no man will dare to assert, even though a 
princely diadem surround his brow, what, fifty years ago it 
would have been thought impious to dispute. That "go- 
vernments are instituted for the benefit of the people," is 
already established — " that they derive their just powers 
from the consent of the governed," cannot fail soon to fol- 
low, to the utter extirpation of the absurd heresy of the 
divine right of kings. In this hemisphere, a " fraternity of 
freedom" has been founded. The colonies of Spain, afflict- 



28 

ed by ages of oppression, have looked upon the standard of 
our revolution, and been healed. They have achieved 
their independence ; and have taken their station among 
the powers of the earth, as members of a family of free 
republics. Such has already been the spread of the light 
which issued from yonder hall, on the fourth July, 1776. 

In contemplating the part which these illustrious men 
performed in the great work of that day, it is delightful to 
recur to the generous and conclusive testimony they have 
borne to each other's merits. Of Mr. Jefferson, Mr. Adams 
says "he came into Congress in June, 1775, and brought 
with him a reputation for literature, science, and a happy 
talent for composition. Writings of his were handed about, 
remarkable for their peculiar felicity of expression. Though- 
a silent member in Congress, he was so prompt, frank, ex- 
plicit, and decisive on committees, (not even Samuel Adams 
was more so,) that he seized upon my heart." Of Mr. 
Adams, Mr. Jefferson says, in a letter, written in 1813, to an 
artist, who was about to engrave the picture of the Decla- 
ration of Independence, " No man better merited, than Mr. 
John Adams, a most conspicuous place in the design. He 
was the pillar of its support on the floor of Congress — its 
ablest advocate and defender against the multifarious at- 
tacks it encountered." Assaults it did encounter — resist- 
ance it did suffer — not from the enemies only of our coun- 
try, but from her most sincere friends. The timid were 
alarmed ; the minds of men of ordinary constancy were 
possessed with doubts and hesitation, at this final and 
irretrievable step. Heroic courage and patriotism were 
what the occasion demanded, and what — let us be thankful 
for it ! — the occasion found. We have seen that the reso- 
lution engaged (he attention of Congress, from the 7th June, 
when it was moved, to the 2d July, when it was adopted. 
"The arguments in Congress," says the late venerable 
Governor M'Kean, a man of revolutionary stature and 
strength, himself one of the signers of the declaration, "The 



29 

arguments, for and against the Declaration of Independence, 
were exhausted, and the measure fully considered." And 
so they, doubtless, were, with all the deliberate gravity and 
solemn earnestness which the momentous occasion required. 
It was, indeed, a fearful question. At the last moment, 
when the question was about to be put, a celebrated mem- 
ber of the Congress, of undoubted patriotism, a man whose 
memory is still cherished with grateful affection for his 
contributions to the service and the honour of his country, 
rose and spoke against it. " He stated the consequences 
in alarming colours.' 1 Silence and doubt ensued. John 
Adams, " the pillar of its support," as Mr. Jefferson has 
styled him, rose in reply. His fervid eloquence silenced 
every doubt. The question was settled, and the vote of 
the states was unanimous. In what language he made this 
last and powerful appeal, we may judge from the trium- 
phant burst of patriotic exultation and pious emotion with 
which he wrote to a friend on the following day.* " Yes- 
terday the greatest question was decided that was ever 
debated in America ; and greater, perhaps, never was or 
will be decided among men. A resolution was passed, 
without one dissenting colony, ' that these United States 
are, and of right ought to be, free and independent states.' 
The day is passed. The 4th July, 1776, will be a memor- 
able epocha in the history of America. I am apt to believe 
it will be celebrated, by succeeding generations, as the 
great anniversary festival. It ought to be commemorated 
as the day of deliverance, by solemn acts of devotion to Al- 
mighty God. Tt ought to be solemnized with pomp, shows, 

* There can be no doubt that the date of the letter was the 3d July, 1770, 
though, in recent publications, it has appeared with the date of the 5th. The 
resolution of Independence was adopted on the 2d July — the declaration was 
not agreed to till the 4th. The former is the " resolution" referred to by Mr. 
Adams. Inattention to this distinction has probably led to the change of date 
in the printed copies. The error is pointed out, and corrected in a very sa- 
tisfactory manner, in the Democratic Press of the 12th instant. 



30 

games, sports, guns, bells, bonfires, and illuminations, from 
one end of the continent to the other, from this time forward 
for ever. You will think me transported with enthusiasm, 
but I am not. I am well aware of the toil, and blood, and 
treasure, that it will cost to maintain this declaration, and 
support and defend these states; yet, through all the gloom 
I can see the rays of light and glory. I can see that the 
end is worth more than all the means ; and that posterity 
will triumph, although you and I may rue, which 1 hope 
we shall not." 

The authorship of the splendid record we have been con- 
sidering belongs to Mr. Jefferson. To him is justly due the 
merit of preparing a paper, which has elevated the national 
character, and furnished a perpetual source of instruction 
and delight. That Mr. Adams, his colleague, entered 
deeply into his sentiments, is equally certain. To the last 
he retained his attachment to the original draught prepar- 
ed by Mr. Jefferson, and thought it had not been improved 
by the slight alteration it underwent, in expunging a few 
passages or parts of passages. 

Placed by their talents and virtues in this elevated and 
commanding position, these two distinguished champions of 
the rights of their country and the rights of mankind, were 
thence-forward looked to for every arduous service. In 
December, 1777, Mr. Adams was appointed a commissioner 
to France, an appointment, as all who are acquainted with 
our history well know, of great hazard, but of the highest 
importance. Struggling for existence, with comparitively 
feeble means, against a powerful enemy, who assumed the 
tone of an insolent and vindictive master, but struggling 
with a constancy of resolution, which already conciliated 
the regard of nations, our country looked abroad for counte- 
nance and aid. But the fleets of England covered the 
ocean, and the tower, where Laurens was so long confined, 
with no prospect beyond it but the scaffold, was the almost 
certain reward of the daring rebel (for so they would have 



31 

styled him) who should fall into their power. This hazard- 
ous employment he instantly and fearlessly accepted. He 
embarked soon after, and, through many imminent perils, 
arrived in safety. Of the signal advantages derived from 
that commission you are well aware. A treaty was made 
with France, and, in the year 1778, our great countryman 
Franklin was received by that nation as the acknowledged 
minister of a sovereign and independent power.* 

Mr. Adams was afterwards sent to Holland, where he 
successfully negotiated a loan. 

Whilst Mr. Adams was serving his country abroad, Mr. 
Jefferson was rendering equal service at home. Being elect- 
ed governor of Virginia, he gave the most effectual aid to 
the cause of the revolution. This rests upon no doubtful or 
questionable authority. Twice, in the course of the year 
1780, were resolutions adopted by Congress, approving his 
conduct, in aiding their military measures in the south. In 
the same year Congress instructed a committee " to inform 
Mr. Adams of the satisfaction they received from his indus- 
trious attention to the interests and honour of these United 
States abroad." Thus did they both deserve, and thus did 
they both receive, the highest rewards that could be bestow- 
ed upon them. 

Not to fatigue you by too much detail, let me simply men- 
tion, that Mr. Adams was appointed sole commissioner to 
nogotiate peace with Great Britain in 1779, — that he was 
one of those who negotiated the provisional articles of peace 
with Great Britain in November, 1782, — who made the 
armistice for the cessation of hostilities in January, 1783, — 

* The treaty was signed at Paris, the 6th February, 1778, by B. Franklin, 
Silas Deane, and Arthur Lee. The Congress of the United States, desired 
the suppression of the 11th article, consenting in return that the 12th should 
likewise be considered of no effect. The acts rescinding these two articles 
were signed at Paris, the 1st September, 1778, on the part of the United States, 
by B. Franklin, Arthur Lee, and John Adams. Doctor Franklin was appoint- 
ed Minister Plenipotentiary to France, on the 14th September, 1778. 



32 

and who finally negotiated the definite treaty of peace in 
September, 1783. 

The thirteen United States, sovereign and independent by 
their own exertions and the favour of Providence, from the 
fourth July, 1776, were now universally acknowledged as 
such, and admitted by all to their place in the family of na- 
tions. They chose, for their two principal representatives 
abroad, the illustrious men whose death we are here met to 
commemorate. Mr. Jefferson succeeded Dr. Franklin in 
France ; Mr. Adams was sent to England. They were 
joined also with Dr. Franklin, in a plenipotentiary commis- 
sion to negotiate treaties of amity, commerce, and naviga- 
tion, with the principal powers of Europe. 

The first treaty with Prussia, the only fruit at that time 
of the commission, bears the names of Franklin, of Jefferson, 
and of Adams. What a splendid constellation of talent ! 
Sufficient, of itself, to shed unfading lustre on a nation — more 
than sufficient to refute the exploded European doctrine of 
the degeneracy of man in America. 

Our history from this period is familiar to you all. When 
the present constitution was framed, Mr. Jefferson was still 
in France. Ever alive to the welfare of his beloved coun- 
try ; ever watchful of those sacred principles of human right, 
which it had been the labour of his life to vindicate and 
maintain, he looked with intense anxiety upon this inter- 
esting movement. To his suggestion, it is understood, we 
are indebted for the ten original amendments to the consti- 
tution, embodying such restrictions on the authority of Con- 
gress, and such assertions of the fundamental rights of the 
citizen, as were thought necessary to the preservation of 
the just power of the states, and the security of civil and 
religious freedom. 

Upon the organization of our present government, the 
voice of the. nation assigned the highest place to Washing- 
ton. He was elected President of the United States. The 
illustrious men whom we now commemorate, were second 



33 

only to him who had no equal. The one was elevated by 
the choice of the people ; the other by the choice of Wash- 
ington. 

Mr. Adams was elected Vice-President of the United 
States; or rather, let me say, he was the second choice 
for President. As the constitution then stood, two were 
voted for as President, and he who had the smallest number 
of votes was the Vice-President. 

Mr. Jefferson was called home by the father of his coun- 
try, to fill the high and arduous station of Secretary of 
State. With what ability he performed its duties, at a 
period of more than ordinary difficulty, I need not state ; 
for it is still fresh in the recollection of most of those who 
hear me. 

A second time was Mr. Adams elected to the second 
office in the country, Washington still filling the first. 
Before a third election came, the great father of his country 
announced his determination to retire, bequeathing to his 
countrymen, in a farewell address, his solemn injunctions 
and advice, which ought for ever to remain engraven upon 
their hearts. He thus set the example, now ripened into 
an established limitation, that the highest office in the 
government is not to continue in the same hands for a 
longer period than two constitutional terms. 

In this great trust, in dignity and importance the greatest 
in the world — the first magistrate of a nation of freemen, 
the first citizen of a republic, selected from millions by 
their spontaneous choice — in this great trust, Mr. Adams 
succeeded Washington ; Mr. Jefferson having the almost 
equal honour of being his chosen competitor. Mr. Jefferson 
was elected Vice-President. 

At the expiration of four years they were again competi- 
tors. After a contest, still remembered for the eagerness 
and warmth, I will not say the violence of the parties 
which then divided the Urfited States, Mr. Jefferson was 
elected President Mr. Adams retired from public life. 

5 



31 

Mr. Jefferson was a second time chosen to the same high 
office. As the expiration of this term drew nigh, imitating 
the dignified example of Washington, and, if possible, 
strengthening its influence by his deliberate opinion, Mr. 
Jefferson announced his intention to retire. He retired in 
March, 1809. 

Thus terminated the public employment of these eminent 
men. Thus did they take leave, as il were, of that coun- 
try, whose welfare had so long engrossed their attention 
and engaged their anxious labours. Is there a man who 
would desire now to revive the recollection of the angry 
feelings, and the warm contention, which prevailed among 
their fellow citizens during a portion of the latter period of 
their service ? Is there a man among us, who, upon this 
occasion, consecrated to the indulgence of virtuous emotion, 
would consent to disturb the harmony that breathes in the 
common acknowledgment to the illustrious dead ? To 
obscure the glorious light of the revolution, by seeking to 
render permanent every cloud that is raised in the gusts of 
momentary excitement? Let the truth be told. It is 
replete with salutary counsel, and it exalts the character 
of the departed sages. Be it, that they appeared to be 
rivals. Be it, that they were, for a time, separated and 
placed in opposition, the leaders of the two great parties in 
the nation. Did they, therefore, love their country less ? 
Where they less influenced by the sacred ardour, that ani- 
mated their hearts in the darkest hour of the revolutionary 
contest? Were they not patriots still, the same lofty and 
incorruptible patriots, who, on the 4th July, 177G, had 
pledged " their lives, their fortunes, and their sacred hon- 
our ? " Did either of them admit a thought, or would either 
of them, for all the honours the world could bestow, have 
countenanced a design unfriendly to his country's interests? 
Let them answer for themselves, or rather let each answer 
for the other. The healing influence of time soon allayed 
the little irritation which conflict had produced. They 



oD 



looked upon their country, and they saw that she was 
prosperous and happy. They saw, perhaps, that even the 
contests of party, angry as they seemed at times to be, yet 
governed by the spirit of patriotism, were over-ruled for 
her permanent advantage; that eager discussion had 
elicited truth, and the solid good sense of a reflecting peo- 
ple had seized and secured whatever was valuable and 
worthy to be preserved. Both had triumphed in the triumph 
of their country's welfare. The aged patriots felt that they 
still were brothers. Their ancient friendship revived. No- 
thing remained but the remembrance of the scenes in which 
they had acted so mighty a part. Nothing was heard from 
either but heartfelt acknowledgements of the other's worth 
and services. If it had been in the order of Providence to 
permit one of these illustrious citizens to witness the de- 
parture of his associate, the survivor would have been the 
first whose honoured voice would have been heard to 
pronounce the eulogy of the departed patriot. 

To form an estimate of the merits and services of these 
distinguished men, far more would be necessary than has 
been now attempted, or the occasion will allow. I have 
only selected for reflection some of the principal incidents 
of their public lives. But let me remind you, that they are 
characteristic incidents. If you follow them into their re- 
spective states, if you follow them into their retirement, 
whatever may be their employments or pursuits, they are 
all stamped with the same ardent love of country, the same 
unaffected reverence for the rights of mankind, the same 
invincible attachment to the cause of civil and religious 
freedom. 

Great are their names ! Honoured and revered be their 
memory ! Associated with Washington and Franklin, their 
glory is a precious possession, enriching our annals, and 
exalting the character of our country. 

Greater is the bright example they have left us ! More 
precious the lesson furnished by their lives for our instruc- 



3G 

tion ! At this affecting moment, then, when we are as- 
sembled to pay the last tribute of respect, let us seriously 
meditate upon our duties, let us consider, earnestly and 
anxiously consider, how we shall best preserve those signal 
blessings which have been transmitted to us — how we shall 
transmit them unimpaired to our posterity. This is the 
honour which would have been most acceptable to these 
illustrious men. This is an appropriate mode of commem- 
orating the event we this day mourn. Let the truths of the 
Declaration of Independence, the principles of the revolu- 
tion, the principles of free government, sink deep into our 
hearts, and govern all our conduct. 

National independence has been achieved, once and for 
ever. It can never be endangered. Time has accumulat- 
ed strength with a rapidity unexampled. The thirteen 
colonies, almost without an union, few in numbers, feeble 
in means, are become in a lapse of fifty years, a nation of 
twenty-four states, bound together by a common govern- 
ment of their own choice, with a territory doubled by 
peaceful acquisition, with ten millions of free inhabitants, 
with a commerce extending to every quarter of the world, 
and resources equal to every emergency of war or peace. 
Institutions of humanity, of science, and of literature, have 
been established throughout the land. Temples have risen 
to Him who created all things, and by whom all things are 
sustained, not by the commands of princes or rulers, nor by 
legal coercion, but from the spontaneous offerings of the 
human heart. Conscience is absolutely free in the broad- 
est and most unqualified sense. Industry is free ; and 
human action knows no greater control, than is indispen- 
sable to the preservation of rational liberty. 

What is our duty? To understand, and to appreciate 
the value of these signal blessings, and with all our might 
and strength, to endeavour to perpetuate them. To take 
care that the great sources from which they flow, be not 
obstructed by selfish passion, nor polluted by lawless ambi- 



37 

tion, nor destroyed by intemperate violence. To rise to the 
full perception of the great truth, " that governments are 
instituted among men to secure human rights, deriving their 
authority from the consent of the governed," and that with 
a knowledge of our own rights, must be united the same 
just regard for the rights of others, and pure affection for 
our country, which dwelt in the hearts of the fathers of 
the revolution. 

In conclusion, allow me to remind you, that with all 
their doings was mingled a spirit of unaffected piety. In 
adversity they humbled themselves before Him, whose 
power is almighty, and whose goodness is infinite. In 
prosperity they gave Him the thanks. In His aid, invoked 
upon their arms and counsels with sincerity of heart, was 
their reliance and their hope. Let us also be thankful for 
the mercies, which as a nation, we have so largely expe- 
rienced, and as often as we gratefully remember those illus- 
trious men to whom we are indebted, let us not forget 
that their efforts must have been unavailing, and that our 
hopes are vain, unless approved by Him ; and in humble 
reliance upon His favour, let us implore His continued 
blessing upon our beloved country. 



DISCOURSE, 

DELIVERED AT RUTGERS COLLEGE, ON THE FOURTEENTH 
OF JULY, 1829. 

GENTLEMEN OF THE PHILOCLEAN AND PEITHESSOrHIAN SOCIE- 
TIES, 

The occasion which has brought us together is cal- 
culated to awaken earnest and anxious reflection. Youth 
is the season of preparation for manhood. In a short time 
those who are in a course of training for the duties of life, 
will, in the order of Providence, succeed to the charge 
which is now borne by their seniors ; and distributed among 
the varied employments of social and civilized existence, 
be called by their own strength, each in his allotted sphere, 
to sustain, preserve, and improve the advantages which are 
derived to them from their predecessors. To fit them for 
the task which is thus to devolve upon them, is the design 
of all education. 

In what manner, and by what means this great design 
may be most efTectually accomplished — what are the me- 
thods most likely to aid in forming a wise and virtuous man, 
an honest and useful citizen, is a question of great interest, 
which cannot be too deeply pondered. An eminent man 
of antiquity has remarked, with equal beauty and force, 
that " a state without youth, would be like a year without 
the Spring." But what avails the Spring, if its blossoms 
perish without producing fruit or seed? If sporting for a 
while in the gaiety of the season, and charming the senses 
with their bloom and fragrance, they disappoint the hope 
which forms their greatest value, and dwindle, fade and die, 
as if they had never been ? 



39 

The insect obeys the law of its ephemeral existence ; it 
spreads its wings in the sunshine, rejoices in a moment of 
life, and then flutters and disappears. The brute animal 
is governed by its appetites, and guided by its instinct. It 
is neither acquainted with its faculties, nor capable of im- 
proving them. The individual and the species, for suc- 
cessive generations, move on in their appointed course, 
without undergoing any sensible change, as little subject to 
degeneracy from any neglect or folly of their own, as they 
are able, by their own efforts, to exalt or improve their 
nature. They live, and they die — they sink into inanimate 
matter, and are lost in the uninformed mass. 

But man is endowed by his Maker with moral and intel- 
lectual powers, which not only distinguish him from all the 
visible creation, but absolutely separate him from any affin- 
ity with it. His bodily frame is dust, fearfully and wonder- 
fully made ; but still a portion of inanimate matter, which 
cleaves to the ground ! His bodily powers, his sensual pas- 
sions and appetites have their dwelling upon the earth, in 
common with the animal creation. His intellect — his power 
of " large discourse, looking before and after," — aspires to 
communion with intelligence, and seeks its kindred beyond 
the limits of this life. His animal nature may truly say to 
the worm, " Thou art my brother, and to corruption, Thou 
art my sister and my mother !" His intellectual and moral 
faculties have no fellowship upon earth. 

These faculties are the talent which his Maker has given 
to man. By means of them, he is enabled to exercise do- 
minion over the earth, and to subdue it to his own enjoy- 
ment and happiness. By their means too, it is intended 
that he shall exercise dominion over the earthly parts of 
himself — that he shall regulate the exercise of his corporeal 
powers, subdue his passions and appetites, and live upon 
the earth, as if he were not of the earth, enjoying the 
bounties of Providence with cheerful gratitude ; doing good 
to his fellow men, and exalting, by rational discipline, his 



40 

own character, and the character of his race. — This is his 
greatest glory — this is his highest happiness — this is his 
obvious duty. 

The faculties which thus constitute the high and distin- 
guishing privilege of man, exalting him above all that sur- 
rounds him, and placing him but " a little lower than the 
angels," are progressive and improveable. It is true, also, 
that the bodily powers are capable of some improvement. 
But the measure of their growth is limited ; and, compara- 
tively, it is soon attained. — Their highest perfection seems 
to continue but for a moment. The intellectual and moral 
capacity, on the contrary, flourishes more and more with 
culture — becomes continually enlarged and invigorated, 
and yields a daily and increasing harvest, even when the 
bodily powers are visibly declining. 

When the bloom has forsaken the cheek — when the 
beautiful smoothness of youth has yielded to the furrows of 
age, and the step has begun to lose something of its elasticity 
and briskness — the cultivated and disciplined mind, nour- 
ished by wholesome food, and enlivened by exercise, is still 
advancing in its career, extending the sphere of its benefi- 
cent influence, and, as it were, supplying, by its own graces, 
the ravages which lime has made in the external form. 
The light within, if duly trimmed and fed, continues to 
spread its lustre with unabated, and even increasing splen- 
dour, when the frame that encloses it has lost its freshness, 
and begun to grow dim from age. 

But we must also remember, that these faculties are lia- 
ble to debasement and degeneracy. They will rust from 
sloth and indolence — they will decay from want of exercise 
and nourishment — and they will be smothered and destroy- 
ed, if subjected to the dominion of our passions and appetites. 
That is an empire they cannot endure. They were in- 
tended to be roasters — and they will not submit to exist as 
slaves. The sluggard suffers the light of his intellect to go 
out. The drunkard drowns and extinguishes it. The one 



41 

sinks into a state of calm brutality — the other, with frenzy 
in his brain, resembles more a savage and maddened animal 
rushing upon his own destruction, but dangerous to all who 
are in his way. Both are guilty in the same kind, though 
not in the same degree. The}' destroy the chief talent 
committed to man, and they degrade and dishonour his 
nature. 

It has already been remarked, that the higher and nobler 
faculties of man will not exist in subjection to his sensual 
nature. They decline, decay and perish, unless they are 
allowed to exercise the authority allotted to them by a wise 
Providence. The moment their just empire is successfully 
invaded, they begin to languish — resistance becomes gra- 
dually more feeble, until at length they are overpowered 
and destroyed. And what then is the condition of the in- 
dividual? Wisdom and virtue are synonymous, and happi- 
ness in their attendant reward. Folly and vice, on the 
contrary, not only lead to misery, but are sure to be ac- 
companied by it at every step. In their first efforts to shake 
off the wholesome restraints of reason and conscience, they 
have to maintain a painful conflict with the accusers within, 
which constantly mars and disappoints their expected en- 
joyment. The poison is manifest in the cup, and they feel 
that it is there. They may throw off the rein of reason and 
conscience, but they will still suffer from the lash ! When 
they have gained the victory, (as it must be admitted they 
may,) they have subverted the natural empire which provi- 
dence had intended should be established; and in the wild 
misrule which follows, the conquerors are sure to be the 
victims of the disorder and confusion they have created. 

Vicious indulgence destroys the body as well as the soul. 
It brings to an untimely end the very capacity for enjoyment. 
Its food is its deadly poison. Does the sluggard enjoy his 
sloth 1 It is impossible. There is no rest without labour. 
Unbroken idleness is more irksome than severe exertion ; 

6 



42 

and it has no relief. The diligent man has delight in his 
honest occupation, even though it be wearisome ; and he 
rejoices in the repose which he earns by it. He, and he 
alone, can duly estimate the force of the truth, that the 
sabbath is made for man ! He is thankful for the refresh- 
ment and rest it affords him; while the habitual idler finds 
that it only increases his weariness. Has the drunkard or 
the debauchee any enjoyment 1 He has scarcely taken one 
step in the delirious path, before he begins to totter, and 
finds that by associating with vice, he has made a compan- 
ion also of disease. They fasten upon him together ; and 
however he may for a while be deluded, he soon becomes 
their conscious and degraded slave, the contempt of man- 
kind gradually settling upon him, and his own reason ap- 
proving the justness of their sentence. The base chains he 
wears are of his own forging. His own are the pain and 
the disgrace they inflict. 

Self-denial and discipline arc the foundation of all good 
character — the source of all true enjoyment — the means of 
all just distinction. This is the invariable law of our nature. 
Excellence of every sort is a prize, and a reward for vir- 
tuous, patient, and well directed exertion, and abstinence 
from whatever may encumber, enfeeble or delay us in our 
course. The approach to its lofty abode is rightly repre- 
sented as steep and rugged. — He who would reach it must 
task his powers — But it is a noble task ! for besides the 
eminence it leads to, it nourishes a just ambition, subdues 
and casts off vicious propensities, and strengthens the pow- 
ers employed in its service, so as to render them continually 
capable of higher and higher attainments. 

What mean the cheers which greet the ingenuous youth, 
when he arrives at the high honours of a seminary of learn- 
sng? Why do the hearts of his parents swell with unu- 
sual gladness, and tears burst forth to relieve their almost 
suffocating joy? Why is this epoch in life marked, as it 



43 

every where is, with such intense and unabating interest ? 
The race is not ended — it is only begun. One stage is 
reached, but another not less critical succeeds — and even 
when that is passed in safety, the whole way of life is 
beset with temptations and dangers, which require all our 
exertion, with the constant aid of a gracious Providence, to 
resist and avoid. Why, then T repeat, this heartfelt rejoic- 
ing 1 It is not merely that he has acquired the portion of 
learning which is taught in a college ; though that is o' 
inestimable value. It is that the youth, whose powers have 
thus been put forth and tried, has given a new earnest of 
character, and a new assurance of hope. His habits are 
measurably formed — his nobler faculties expanded — and his 
future elevation, in some degree indicated, by the strength 
of l>jnJ9» ...4is.pl.ayed m his first flight. 

As the mother's eye marks with inexpressible delight the 
first steps of her child, and her ear catches, with thrilling 
rapture, the music of his earliest efforts to utter articulate 
sounds, imparting her joy to the whole household, and ma- 
king as it were a family jubilee — so is the attainment of 
the honours of a college naturally and justly regarded with 
deep emotion. It fixes an important period in what may 
be termed the infancy of manhood, demonstrating the exis- 
tence of a capacity for usefulness, and for further and high- 
er honours. Happy are the youth who enjoy the opportu- 
nity of a liberal education — happier still are they who dili- 
gently and successfully improve it ! 

It is not the design of this discourse to speak of education 
in general — but only to make a few remarks upon what is 
denominated a liberal education — that system of instruction 
which is adopted in the higher seats of learning, and leads 
to learned honours. Institutions of this description are ra- 
pidly increasing in every quarter of our country. U the 
establishment of numerous seminaries of learning is to be 
regarded as an evidence of a corresponding increase of de- 



44 

mand for liberal education, founded upon a proper know- 
ledge of its nature, a just appreciation of its advantages, 
and a fixed determination to uphold and even to elevate its 
standard, this circumstance must afford the highest satis- 
faction to the scholar, the patriot, and the philanthropist. 
It will promote the cause of sound learning — it will advance 
the honour of our country, and it will increase the happi- 
ness of mankind. That such may be its ellect, every one 
must ardently desire. 

But it must be obvious at the same time, that these ad- 
vantages are only to be gained by maintaining unimpaired, 
and in all its integrity, the true character of the higher sem- 
inaries of learning. It is not their object to teach the sim- 
pler elements of knowledge. These must be first acquired 
elsewhere, as an indispensable preliminary to admission. 
Nor do they profess, as a part of the collegiate course, to 
qualify individuals for particular employments in life. This 
is a matter of subsequent acquisition, frequently not decid- 
ed upon till after the college studies are ended. 

The design of a college, as it has been well said, is, " to lay 
the foundation of a superior education ;" not to teach fully 
any particular art or science, but to discipline the intellec- 
tual powers, and to store the mind with such knowledge as 
may lead to further attainments, and be useful in any of the 
occupations or pursuits which are likely to be the lot of 
those who have the advantage of a collegiate education. 
In a word, to place distinctly before the student the high 
objects to be aimed at — to teach him how they are to be 
attained — to stimulate him by worthy motives — and, after 
unfolding to him his own powers, and the mode of employ- 
ing them, to send him forth with a generous and well direct- 
ed ambition, and an instructed and disciplined mind, to 
follow out the course in which he has thus been trained. 

Such a system, it must be evident, admits of no conces- 
sion to individual views or inclinations. It works by gene- 



45 

ral means, and for a general end. It proposes the same 
instruction for all ; the same discipline ; the same rewards ; 
proceeding upon the assumed basis, that the plan thus adopt- 
ed is in itself the best calculated to produce the desired 
general result. 

In Sparta, the education of youth was a public concern. 
At an early age, children were taken from their parents, 
and placed under the care of masters appointed by the state, 
to prepare them, according to their notions, to become good 
citizens. The ancient Persians and the Cretans adopted a 
similar plan. With them too, education was a matter of 
public regulation. Among the Athenians and Romans, 
youth were not thus detached by law from the authority 
and care of their parents. But their education was justly 
deemed to be a matter of the highest importance, and con- 
ducted, no doubt, upon a general system, adapted to their 
manners and circumstances. Whatever opinion we may 
entertain of the methods they adopted, and the end they 
proposed — however different may have been the character 
intended to be farmed, by the institutions of the Spartans 
and the Persians, from that which modern education pro- 
poses to cultivate — yet there is one point which has the 
sanction of their authority as well as the authority of suc- 
ceeding times — that the education of youth having reference 
to a determined end, ought to be conducted upon a general 
plan, and that plan the best that is attainable for the end 
proposed, and carried to the highest perfection of which it 
is susceptible. It is not meant to be contended, that in mo- 
dern times, and in large communities, when there is so great 
an inequality in the condition of men, the highest education 
is, or ever can be within the reach of all, or even of a very 
considerable number. In our own country, favoured as it 
is by the bounty of Providence, with advantages such as no 
nation has ever before enjoyed, how many are there to whom 
the benefits even of the humblest education are not extend- 



46 

ed ! Enlightened benevolence is happily exerting itself with 
unwearied diligence, to remedy this reproachful evil ; and 
it is to be hoped, that the time will soon come, when not a 
child will be left destitute of the means of acquiring at least 
the simpler elements of knowledge. This, however, is a 
subject of vast extent and interest, upon which it is not in- 
tended now to touch. 

When, therefore, we speak of a " superior education," 
or a " liberal education,'''' or, which ought to be equivalent, 
a " collegiate education," we speak of that which has one 
common purpose or object, and which of course is necessa- 
rily itself but one. That it is applicable to all the youth 
of a country, whatever may be their condition or prepara- 
tion, or whatever may be their future views in life, is what, 
as already intimated, it is not intended to affirm. The 
greater number cannot enjoy its advantages. At the age 
when the course of instruction in a college usually begins, 
some are obliged to labour for their subsistence ; some are 
condemned to lasting ignorance by the neglect of parents 
or friends, or by the imperious force of circumstances ; and 
some are already fixed to the occupations which are to 
employ their maturer years. We would not be understood 
by this remark to suggest, that superiority consists in the 
advantages we possess — it is only in the use we make of 
them, for which we are responsible, exactly in the propor- 
tion of their extent. All honest industry is honourable, as 
well as useful. Nothing is disgraceful but idleness and vice ; 
and the disgrace they bring with them is greater or less, as 
our opportunities have been more or less favourable. In 
the judgment of mankind, as well as in the awful judgment 
of Him from whom we have received all that we possess, 
the improvement required of us is according to the talent 
committed to our care. Much is therefore expected of him 
who has the means of attaining the highest intellectual and 
moral advancement. He is not to look down with a feeling 



47 

of pride, upon other employments or conditions of life, as if 
they were inferior ; but comparing himself with the most 
diligent in each — to examine whether he has equally 
with them improved the talents and opportunities vouch- 
safed to him — whether, in the race of honest exertion — 
the only generous competition that all can engage in — he 
has equalled, or excelled them — whether he has better or 
worse fulfilled the duty he owes to his day and generation. 
The humblest labourer, who strenuously performs his 
daily task, and honestly provides an independent subsistence 
for himself and his family, is inconceivably superior to the 
sluggard and idler, though the latter may have had the 
opportunity of education in a seminary of learning. 

There are some, who suppose that the business of in- 
struction might be better adapted to the inclinations and 
views of individuals — that each student in a college might 
be taught only that which he desires to learn, and be at 
liberty to dispense with such branches of learning as ap- 
peared to him unnecessary or inapplicable, and yet receive 
collegiate honours ! This is an opinion which is perhaps 
gaining ground, and which, it cannot be denied, has been 
adopted by several distinguished men, and supported by 
plausible arguments. 

Education, in all its parts, is a concern of so much conse- 
quence, so deeply and vitally interesting, that it ought not 
to be exposed, without great caution, to hazardous experi- 
ments and innovations. Is it, then, susceptible of no 
improvement 1 Is the human mind, progressive upon all 
other subjects, to be stationary upon this? Shall not edu- 
cation be allowed to advance with the march of intellect, 
and its path be illuminated with the increased and increas- 
ing light of the age ? Or shall it be condemned to grope in 
the imperfect twilight, while every thing else enjoys the 
lustre of a meridian sun ? These are imposing questions 
which are not to be answered by a single word. Admit- 



48 

ting the general truth of that which they seem to assert 
namely, that education, in all its departments, ought to be 
carried to the highest attainable perfection, and that the 
methods of reaching that point deserve our most anxious 
and continued attention — it must at the same time be appa- 
rent, that as long as the argument is merely speculative, 
implying objections to existing methods of instruction, and 
raisins doubts about their value, without offering a distinct 
and approved substitute, great danger is to be apprehended 
from its circulation. 

There is no doubt that improvement may be made in the 
seminaries of our country — there is no doubt that it ought 
to be made — and it is quite certain that it requires nothing 
but the support of enlightened public sentiment to bring it 
into operation. The improvement adverted to is improve- 
ment in degree — a better preparation for admission into 
college — a somewhat later age, and of course more mature 
powers — and, as a consequence, higher and more thorough 
teaching. The result can not be secured, unless the means 
are employed ; and their employment does not depend upon 
those who are immediately entrusted with the care of the 
instruction of youth. Professors and teachers would un- 
feignedly rejoice, in raising the standard of education — in 
advancing their pupils further and further in the path of 
learning — if parents, duly estimating its importance, could 
be prevailed upon to alford them the opportunity — for they, 
(unless totally unfit for their trust,) must be justly and con- 
scientiously convinced of the value of such improvement. 
But their voice is scarcely listened to. By a prejudice, as 
absurd and unreasonable as it is unjust, they are supposed 
to be seeking only to advar.ee their own interest; and 
their testimony is, on that account, disregarded ; when, 
upon every principle by which human evidence ought to be 
tried, it is entitled to the highest respect. Their means of 
knowledge are greater than those of other men. They learn 



49 

from daily experience — they learn from constant and anxious 
meditation — they learn from habitual occupation. It is theirs 
to watch with parental attention; and with more than paren- 
tal intelligence, the expanding powers of the pupils commit- 
ted to their charge. It is theirs to observe the influence of 
discipline and instruction in numerous instances, as it ope- 
rates upon our nature — and it is theirs, too, with parental 
feeling to note the issues of their labours, in the lives of 
those who have been under their charge- — to rejoice with 
becoming pride, when following an alumnus of the college 
with the eye of affectionate tenderness, they see him steadily 
pursuing a straight forward and elevated path, and becom- 
ing a good and an eminent man — and to mourn, with un- 
affected sorrow, over those who have fallen by the way, 
disappointing the hopes of their parents and friends, turning 
to naught the counsels and cares that have been bestowed 
upon them, and inflicting pain and misery upon all who felt 
an interest in their welfare. Ezperlo crede, is the maxim 
of the law ; and it is no less the maxim of common sense. 
Why is it not to be applied to the case under consideration, 
as it is to all others which are to be determined by evi- 
dence ? The sneering and vulgar insinuation sometimes 
hazarded by those who tind it easier to sneer and insinuate, 
than to reason, that teachers, as a body, have a peculiar 
interest of their own, sufficient, upon questions which con- 
cern their vocation, to bring into doubt the integrity of 
their judgment, and thus to make them incompetent to be 
witnesses, if rightly considered, is not so much an insult to 
this useful and honourable, and I may add, in general, faith- 
ful class of men, as it is to the parents who entrust them 
with their children. What judgment shall we form of 
their intelligence — what shall we say of their regard for 
their offspring, if, at the most critical period of life, they 
place the forming intellect in the hands of men of more 
than questionable integrity, to be fashioned by them into 

7 



50 

fantastic shapes to suit their own purposes, or gratify their 
own whims 1 The truth is, that it is an appeal to ignorance, 
which can succeed only with those who are unable or 
unwilling to think, and is employed chiefly for want of 
solid argument. 

The circumstances of our country, it must be admitted, 
have encouraged and have favoured an early entrance into 
life, and so far have been averse to extended education. 
This cause has naturally, and to a certain extent, justifi- 
ably, induced parents to yield to the restless eagerness of 
youth, always anxious to escape from the trammels of disci- 
pline, and confide in the strength of their untried powers. 
Pride, too, a false and injurious pride is apt to lend its as- 
sistance. Instead of measuring the child's progress by his 
advancement in learning and in years, the parent is too 
much inclined to dwell only upon the advance he has made 
in his classes, and to note, with peculiar gratification, the 
fact, that he is the youngest of the graduates. Often, when 
it is evident to the teacher, that the pupil's lasting interest 
would be promoted by reviewing a part of his course, the 
very suggestion of being put back, is received as an affront, 
and indignantly rejected, though offered from the kindest 
and best considered motives. It is a mistake, a great mis- 
take. To hurry a youth into college, and hurry him out 
of it, that he may have the barren triumph of extraordinary 
forwardness, is to forget the very end and object of education, 
which is to give him the full benefit of all that he can ac- 
quire in the period, which precedes his choice of a pursuit 
for life. What is gained by it ? If, as frequently happens, 
he be too young to enter upon the study of a profession, 
there is an awkward interval when he is left to himself; he 
is almost sure to misapply and waste his precious time, and 
is in great danger of contracting permanent habits of idle- 
ness and dissipation. But even should this not be the case, 
of what consequence is it to him, that he should enter upon 



51 

a profession a year sooner or later, compared with the loss 
of the opportunity of deepening, and widening and strength- 
ening the foundations of character, which are then to be 
laid in a seminary of learning. This opinion is not with- 
out decided support. Many intelligent parents have been 
observed to adopt it in practice, voluntarily lengthening 
out the education of their children beyond the ordinary 
limits. Such an improvement as has now been alluded to, 
ought unquestionably to be aimed at. The progress of 
liberal education ought to bear some proportion to the ra- 
pid advances our country is making in other respects, and 
to the character and standing which her wealth, her 
strength, and her resources require her to maintain. It is 
especially due to the nature of our republican institutions, 
in order to win for them still higher esteem with mankind, 
that their capacity should be demonstrated, to encourage 
and produce whatever is calculated to adorn and to improve 
our nature, and to contribute our full proportion to the 
great society of learning and letters in the world. It would 
be much to be regretted, if the multiplication of colleges 
were to have the contrary effect, of lowering the standard 
of education, or of preventing its progressive elevation. 
Let the competition among them be, not who shall have the 
most pupils within their walls, but who shall make the best 
scholars ! 

But may there not be improvement in kind, as well as in 
degree ? May not the course of studies itself be benefi- 
cially altered, excluding some, which are now in use, and 
adopting others which have not hitherto been introduced 
— changing the relative importance of different objects of 
study — making those secondar}^, which at present are prin- 
cipal, and those principal which are now, in some degree, 
secondary — or, adopting a flexible and yielding system, may 
not the studies be accommodated to the views and wishes 
of individuals, permitting each pupil to pursue those, and 



52 

those only, which he or his parents or friends may think 
proper to select as best adapted to his expected plan of 
life? It would be rash and presumptuous to answer that 
such improvement is impossible ; and it would be unwise, 
if it were practicable, to check or discourage the investiga- 
tion of matters so important to the welfare of man. The 
subject is one which at all times deserves the most careful 
consideration ; and the highest intellect cannot be better 
employed than in examining it in all its bearings. But its 
unspeakable importance inculcates also the necessity of 
great caution. It is dangerous to unsettle foundations. 
Doubts and objections to existing systems, without a plain 
and adequate substitute, are calculated only to do mischief. 
By bringing into question the value of present methods of 
instruction, they tend to weaken public confidence, to para- 
lyze the efforts of the teacher, and to destroy or enfeeble 
the exertions of the student. A strong conviction of the 
excellence of the end, is the indispensable incitement to the 
toil of attaining it. Without this stimulus, in all its vigour, 
nothing rational will be achieved. The love of ease, which 
is natural to us all, will lend a ready ear to the suggestion, 
that labour would be wasted ; and the misguided youth, 
doubting the usefulness of the task that is before him, and 
expecting something (he knows not what) more worthy of 
his zeal and energy, will be like the foolish man, who stood 
upon the bank of a river, waiting for the water to run out, 
and leave the channel dry for him to pass over. 

Experimcnium in corpore vili, is the cautious maxim of 
physics. A generation of youth is of too great value to be 
experimented upon ; and education is of too much conse- 
quence to hazard its loss, by waiting for the possible dis- 
covery of better methods. It is a great public concern, 
and should be dealt with accordingly; until a specific change 
shall be proposed, which, upon a deliberate and careful ex- 
amination, shall meet the acceptance of the greater part 



53 

of those who are best able to judge, so that they can con- 
scientiously, and with full conviction, recommend it to 
general adoption, as entirely worthy of public confidence, 
let us cling to that which has been proved to be good. 
Quackery is odious in all things, but in none more than in 
this. Stare super vias antiquas, is a safe precept for all, 
at least until a way be pointed out that is clearly and 
demonstrably better. 

Speculation, however ingenious, is not knowledge; nor 
are doubts and objections to be entertained, where decision 
is of such vital importance. Time is rushing on — Youth is 
passing away. The moments, that are gliding by us, will 
never return. The seed time neglected, there will be no 
good harvest. Poisonous and hateful weeds may occupy 
the soil, which, under good culture, would have yielded 
excellent fruit. The craving appetite of youth must be 
satisfied. If not supplied with sound and wholesome food, 
it will languish for want of sustenance, or perhaps drink 
in poison and destruction. The brute animal, without 
reason, is guided by an unerring direction, to the provision 
made for its support, each individual obeying his own in- 
stinct, without aid or counsel or restraint from the others. 
But man, excepting the direction he receives to the beau- 
tiful fountain of nourishment, provided for the short period 
of helpless and unconscious infancy, has no such determined 
instinct. He has a large range, and a free choice. " The 
world is all before him, where to choose ;" and reason is 
given, to select for him that which is for his advantage. 
Nor is the rational individual left dependent upon his own 
unassisted intelligence for his guidance. Until his faculties, 
which are progressive, have arrived at a certain maturity, 
it is in the order of Providence, that he should have the 
benefit of the enlightened reason of his species imparted 
to him, for his own sake, by parents, by teachers, by 
friends, and by the counsels of the wise and the virtuous, 



54 

which he cannot enjoy but upon the terms of being sub" 
jected to their authority. It is theirs to lead him on his 
way — it is his to follow the path they point to. But if 
the guide stand doubting and perplexed, what will become 
of the follower ? 

That a collegiate education can be so modified as that 
each student may be permitted to choose his own studies 
generally, or even to a limited extent, and yet receive the 
honours of a college, is a proposition, which, to say the least 
of it, must be deemed to be very questionable. 

Without intending to occupy your time with any thing like 
a discussion of this question, it may, nevertheless, be allow- 
able to remark, that the suggestion, however plausible in 
itself, seems to be founded in an erroneous conception of the 
nature of such an education. However it may be styled a 
collegiate education — a superior education — a liberal edu- 
cation — it is still only a portion of preliminary education. It 
is not designed, as has already been stated, to qualify the 
student in a special manner for any particular profession or 
pursuit — to make him a Divine, or a Lawyer, or a Physi- 
cian — but to aid in the development of all his faculties in 
their just proportions ; and by discipline and instruction, to 
furnish him with those general qualifications, which are 
useful and ornamental in every profession, which are es- 
sential to the successful pursuit of letters in any of their va- 
rious forms, and, if possible, even more indispensible to the 
security and honour of a life of leisure. Nor does it set up 
the extravagant pretention of supplying him with a stock of 
knowledge sufficient for all purposes, and sufficient for its 
own preservation, without further exertion. It gives him 
the keys of knowledge, and instructs him how to use them 
for drawing from the mass, and adding to his stores. It 
teaches him the first and greatest of lessons — it teaches 
him how to learn, and inspires him at the same time, if it 
succeed at all, with that love of learning, which will invi- 



i>5 

gorate his resolution in the continual improvement of this 
lesson. The momentum, if rightly communicated, and 
rightly received, will continue to be felt throughout his life. 
But it is unnecessary to dwell longer on this part of the sub- 
ject, as it has lately received an ample and able exposition, 
in a report made by the faculty of a neighbouring institu- 
tion,* which, (if I may be permitted to venture a judgment 
upon the work of so learned a body,) does them the highest 
honour. 

The suggestion under consideration would perhaps be en- 
titled to more respect, if in fact the destination of youth for 
life always, or even generally, preceded their entrance into 
college. But that, it is believed, is not the case. The fond 
partiality of a parent may sometimes discern, or fancy it 
discerns in a child, the promise of eminence in some pecu- 
liar walk. But it would be unwise to decide finally, before 
a decision is necessary, and before the subject is ripe for 
decision. It is in the college that the youth has the last 
trial with his equals. There his growing powers are more 
fully exhibited, and placed in a clearer light. And there, 
too, it often happens, that an inclination is disclosed, which 
not being unreasonable in itself, a prudent and affectionate 
parent may think fit to indulge. The time of leaving 
college would, therefore, seem to be a much more suitable 
occasion for decision than the time of entering it. But 
even such a decision is not always unchangeable. How 
many instances have occurred, of youth, who, after receiv- 
ing the benefits of a liberal education, have engaged in one 
pursuit, and subsequently, with the approbation of their 
parents and friends, have betaken themselves to another, 
with distinguished success ! Several present themselves to 
my recollection, and some of them of men who have attain- 
ed, and are now enjoying the highest eminence. 

* Yale College. 



56 

How often does it happen, much later in life, that men 
are compelled by circumstances, or constrained by a sense 
of duty, to change their occupations? It is precisely in 
such instances that the advantages of a liberal education 
are most sensibly felt — of that early training, and general 
preparation, which, not being exclusively intended for any 
one pursuit, are adapted to many, if not to all, and confer 
upon the individual a sort of universality of application and 
power. In a moment like this, the means which education 
has supplied, come to our aid, like the neglected and almost 
forgotten gift of an old friend, hallowed and endeared by 
the associations they bring with them. And in such a mo- 
ment, the individual who has not had the same opportunity, 
most keenly feels the loss. 

Nor must we forget that in this our country, every indi- 
vidual may be called upon to take a part in public affairs, 
and there to maintain his own character, and the charac- 
ter of the state or nation. And even should not this occur, 
still he is to mingle in the intercourse of polished society, 
where his station in the esteem and respect of others, will 
be assigned to him, according to the measure of his im- 
provement and worth, estimated by the scale of his oppor- 
tunities. Being, as it were, a part of the Corinthian capital 
of society, he will be unworthy of his place, if he is desti- 
tute of the ornaments and graces that belong to his station. 

But upon the plan that is now in question, who is to 
choose for the youth the studies he will pursue 1 Surely it 
cannot be gravely asserted, that, at the usual age of enter- 
ing into college, the choice ought to be left to himself. Why 
has Providence committed the care of children to the af- 
fectionate intelligence of parents ? Why have human laws 
provided for them tutors and guardians? Why have 
schools, and seminaries of learning been established, and 
courses of education and discipline prescribed, but to give 
them the benelit of that experience and knowledge which 
they do not themselves possess ? 



57 

To suppose that a youth, at such an age, is competent 
to decide for himself what he will learn, and how much he 
will learn, is to suppose that he has already had the expe- 
rience of manhood, under the most favourable circum- 
stances — that he is competent to educate himself — nay, 
that he is already educated — and instead of needing in- 
struction, is qualified to impart it to others. Is the choice 
then to be made by parents ? To them it undoubtedly 
belongs, as a right, to determine for their children, whether 
they will send them to college or not — but there their 
authority terminates. It cannot be pretended that every 
parent, or that any parent has, or ought to have, or can 
have a right to decide upon the discipline and instruction 
to be adopted in a college, though he has the power of 
withdrawing his child, if he think fit to do so. 

Admitting parents to be fully competent to resolve a 
question of so much depth and difficulty — as many unques- 
iionabby are — and admitting, too, that their views are more 
wise and accurate, and entitled to greater deference than 
the collected and continued wisdom which has devised, and 
which preserves the system in being, still it would be ob- 
viously impracticable to indulge them. There could not, 
in such a case, be statutes or laws, or discipline, or system. 
In short, there could be no government. To some, it may 
seem harsh, but it is believed to be perfectly true, that 
when a youth is once placed in a College, selected after 
due deliberation, the less interference there is on the part 
of the parent, except in cases of manifest wrong done to 
him, (which rarely or ever occur in our principal institu- 
tions,) and the more unreservedly the pupil is committed to 
the authorities of the institution, the better it will be both 
for parent and child. 

Above all things, a parent should sedulously guard 
against the introduction of a doubt into the mind of a stu- 
dent, of the justice and necessity of the authority exercised 

8 



58 

over him, or of the excellence of the studies he is required 
to pursue. Such doubts must inevitably produce insubor- 
dination and indolence, and will end in the disappointment 
of his hopes. Enthusiastic and ardent zeal, an estimate 
even exaggerated, of the excellence of a given pursuit, 
amounting almost to folly in the judgment of by-standers, 
are the needful stimulants to successful enterprize. No- 
thing great is achieved without them. The heart must go 
along with the understanding. A strong passion must take 
possession of the soul, inspiring it with warmth, and with 
enduring energy, and unconquerable resolution ; so that all 
its faculties may be fully and steadily exerted, and over- 
coming the vis inertiae of our nature, and deaf and blind to 
the temptations that would seduce it from its course, it may 
press forward continually towards the prize which is to be 
the reward of its toils. Such ought to be the feelings of 
the youth who is favoured with the opportunity of a liberal 
education. Devotion to his studies, as excellent in them- 
selves, affectionate respect for his teachers, as faithful 
guides and impartial judges, an honourable competition 
with his equals, in virtuous exertion, and a conscientious 
observance of the laws of the institution — these are the 
habits which will lay a deep foundation for the structure of 
future usefulness and eminence. The honours of the col- 
lege, their first fruits, and their just reward, are the gra- 
tifying proofs of a capacity for further triumphs, and 
constitute the richest, and most acceptable offering which 
filial duty can present as an acknowledgment and requital 
of parental care. 

That part of a course of liberal education, however, 
which has been most frequently assailed, is the study of the 
Greek and R,oman Classics — what is emphatically called 
Classical learning. Some have insisted that it ought to be 
altogether excluded ; and others, that it does not deserve 
to occupy so much of the time and attention of youth. 



59 

Mr. Locke, who himself enjoyed the full benefit of the trea- 
sures of ancient learning, seems to make a compromise of 
the matter ; for while he admits that the languages may be 
useful to those who are designed for the learned professions, 
or for the life of a gentleman without a profession, he seems 
to consider that they, as well as philosophy, are calculated 
rather to have an injurious effect upon the general charac- 
ter, than otherwise. The broader ground of entire exclu- 
sion, however, as has already been said, has had its advo- 
cates. Many years ago, a distinguished citizen of the 
United States, whose memory, let it be said, is entitled to 
great veneration, among other things for the example he 
gave of untiring industry and youthful vigour in his varied 
pursuits, continued to almost the last day of a long life, 
published an essay, in which, with his usual ingenuity and 
force, he contested the value of classical learning as a 
branch of education. It appears from a subsequent pub- 
lication, by the same author, that this essay produced many 
replies, and that it also produced a complimentary letter 
(now published with the essay,) from a gentleman who is 
stated to have been at that time the principal of an aca- 
demy. In this letter, after complimenting the author, the 
writer proceeds as follows — " There is little taste for them 
(the learned languages,) in this place. In our academy, 
where there are near ninety students, not above nineteen 
are poring over Latin and Greek. One of these nineteen 
was lately addressed by a student of arithmetic in the fol- 
lowing language — ' Pray, sir, can you resolve me, by your 
Latin, this question? If one bushel of corn cost four shil- 
lings, what cost fifty bushels?' A demand of this kind, 
from a youth, is to me a proof of the taste of Americans in 
the present day, who prefer the useful to the ornamental /" 
This was surely an extraordinary triumph over the poor 
Latanist, and a very singular evidence of what the good 
principal was pleased to call " American taste !" Who 



60 

ever imagined that the study of the Greek and Latin would 
teach a boy the iirst rules of Arithmetic 1 Or who was 
ever absurd enough to contend that Greek and Latin were 
to be taught to the exclusion of the simplest elements of 
pure mathematics 1 They have their appropriate uses and 
advantages; but they do not profess to be themselves the 
whole of education, nor to accomplish every thing that is 
desirable. They do not give sight to the blind, nor hearing 
to the deaf, nor speech to the dumb ; but when these facul- 
ties exist in their usual perfection — as is happily the case 
with the far greater part of mankind — and there is the 
ordinary portion of talent, they furnish an occupation, 
which is both useful and ornamental, which is not incon- 
sistent with the necessary attainments in mathematics, and 
which may not only well go along with the acquisition of 
our own language, but is deemed to be indispensable to its 
accurate knowledge, and highest enjoyment. 

But however feeble was the commentary of the Princi- 
pal, and however ignorant was the argument of the "stu- 
dent of arithmetic," yet, for him, it was not in a wrong 
spirit. Arithmetic was his pursuit, and it was fit that he 
should think well of it. — But the poor student of Latin ! 
What could be expected from his labours in a seminary 
where the study was systematically depreciated ; and the 
head of it, from whom he was to look for encouragement 
and assistance, gloried (conscientiously, no doubt,) in having 
nearly expelled it from his school I The teacher might, 
and probably did, endeavour to perform his duty ; but it 
must have been coldly and heartlessly done. Instead of 
breathing warmth and animation into the atmosphere, to 
invigorate the tender plants entrusted to his care, they 
must have been in imminent danger of being stunted in 
their growth, by chilling and withering indifference. 

Of the opinions which have been mentioned, the one 
proposing entirely to exclude the ancient languages from a 



61 

course of liberal instruction — and the other, to reduce the 
•time and attention devoted to them, it would be difficult to 
say, that as applied to this country, the one is more to be 
deprecated than the other. Are the languages overtaught 
now ? Will they bear a reduction ? The reverse is known 
to be the fact. Compared with the teaching in the Ger- 
man schools, where the design is to make scholars, compared 
with the teaching in the schools of England, where the 
design, in addition to this, is to qualify men for all the 
higher employments of life, as well as for a life without 
particular employment, it can scarcely be said that here 
they are taught at all. Excepting in the profession of di- 
vinity, is it too strong to affirm that there is scarcely such 
a thing as scholarship ? And even in that profession, how 
many are there, in proportion to the whole number en- 
gaged in its sacred duties, who would be able to encounter 
a learned infidel with the weapons of ancient learning? 
We have eminent lawyers — we have distinguished physi- 
cians — enterprising and intelligent merchants — and a fund 
of general talent capable of the highest elevation in every 
employment or pursuit of life. Occasionally we meet with 
one among them, commonly of the old stock, in whom is 
discerned the elegant influence of classical literature. 

But where are our eminent scholars ? Where are the 
greater lights, ruling with a steady and diffusive splendour, 
and vindicating their claim to a place among the constel- 
lations which shine in the firmament of learning? Nay, 
how few are there among us, of our best educated men, 
who, if called upon to bring forth their stores, would be 
able to say with Queen Elizabeth, that they had " brushed 
up their Latin," or would have any Latin to brush up ? 
The truth is that this branch of study is already at the very 
minimum, if not below it. It will not bear the least reduc- 
tion. It positively requires to be increased in teaching, and 
raised in public esteem. Classical learning neither falls in 



62 

showers, nor flows in streams. Here and there a solitary 
drop appears, sparkling and beautiful to be sure, like the 
last dew on a leaf, but too feeble, without the support of 
its kindred element, even to preserve itself, and utterly 
powerless to enrich or fructify the neighbouring soil. To 
propose a reduction, is therefore equivalent, at least, to an 
entire exclusion, if it be not worse. Less taught than it 
now is, or less esteemed, the teaching would be almost a 
false pretence, and the learning a waste of time. It would 
be as well at once to blot it from the course, and, as far as 
in our power lies, to let the Greek and Latin languages 
sink into oblivion, and be lost in profound darkness, like 
that from which, by their single power, they have once 
recovered the world. 

This would be a parricidal work for civilization and sci- 
ence. But if it is to be accomplished, the mode, is not what 
is to characterize it as unnatural. Before we advance to 
a conclusion of such incalculable importance, let us first 
consider what it is, and then endeavour to be fully assured 
that it is right. If it be once decided that the study of the 
ancient languages can be dispensed with in a collegiate 
education, and the honours of a college obtained without it, 
there is no difficulty in perceiving it must also be dropped 
in the preparatory schools. Why begin it, if it is not to 
be pursued ? Why take up time in acquiring what is after- 
wards to be thrown aside as rubbish, and forgotten ? For- 
gotten it inevitably will be, if it be entirely discontinued at 
the time of entering college. By what motives or argu- 
ments will a boy be persuaded to apply himself to learning 
in a Grammar School, what is not necessary to obtain for 
him the honours of a college, and what he is distinctly told 
will be of no use to him in life 1 It is absurd to think of it. 
The youngest child has sagacity enough to understand an 
argument, which coincides with his own inclination, and to 
apply it to the indulgence of his own natural love of ease. 



63 

Tell him that he might as well be unemployed, and, 
without having ever studied logic, he will be very apt to 
jump at once to the seductive conclusion of idleness. 

These languages, let it be remembered, have hitherto 
not merely formed a part, they have been the very basis 
of a liberal education. I might almost say they have been 
education itself. From the revival of letters to the present 
time, they have held this station, through a period of five 
hundred years, not in one country only, but in all the civi- 
lized world. They gained it by their own merits, and they 
have kept it by their unquestionable success. Would it 
be wise or prudent to cast them off, unless we were fully 
prepared to supply the large space they have occupied, by 
something equal, at least, if not superior? This is no me- 
taphysical question ; nor does the answer to it require the 
peculiar powers of Mr. Locke, mighty as they confessedly 
were. It is eminently a practical question, which common 
sense is fully able to decide. It may be stated thus ; edu- 
cation, having a given end, and a certain plan of education 
having approved itself during some hundreds of years, and 
still continuing daily to approve itself to be well suited to 
attain that end, is it wise or rational to require that it shall 
be vindicated upon original grounds, and be rejected like 
a novelty, unless it can be justified to our complete satis- 
faction, by arguments a priori? Of what consequence 
is the modus operandi if the desired result be attained ? 
That is a good time-keeper which keeps good time, no 
matter how constructed. That is good food which is found 
to nourish the body, whatever peptic precepts may say to 
the contrary. And that is good exercise, which gives vig- 
our and grace to the limbs, even though a Chinese lady 
might not be allowed to use it. Against such a fact, once 
well established, argumentative objection ought to be un- 
availing, or there is an end to all just reasoning. 

" What can we reason, but from what we know ?" 



64 

This proof is manifest, in respect to nations, as it is in 
respect to individuals. It is astonishing, that Mr. Locke 
could have entertained the suggestion for a moment, that 
the study of the languages and philosophy was unfriendly 
to the formation of prudent and strong character, when he 
looked around upon his countrymen, and perceived, as he 
must have done, that they are not less distinguished for 
their attachment to these studies, than for what Mr. Burke 
has called, " the family of grave and masculine virtues." 
Constancy, resolution, unconquerable spirit, a lofty deter- 
mination never under any circumstances of adversity to 
admit the betraying counsels of fear, were not more sig- 
nally exhibited by the old Romans, when Hannibal, 
triumphant, and seemingly irresistible, from the slaughter 
at Cannae, was thundering at the gates of Rome, than they 
have been by that nation, which Mr. Locke's genius has 
contributed to illustrate and adorn. This same study has 
gone hand in hand with every profession and pursuit, refin- 
ing, exalting and dignifying them all. Theologians, states- 
men, lawyers, physicians, poets, orators, philosophers, the 
votaries of science and of letters, have been disciplined and 
nourished by it, and under the influence of its culture have 
attained the highest excellence. The arts of life have, at 
the same time, kept on with steady pace, so that the people 
whom Cesar spoke of as, in his time, " Britannos toto orbe 
divisos" now, if not in all respects at the very head of the 
European family, are certainly not inferior to any of its 
members. Let those who cavil at a liberal education, and 
those especially who question the value of the Greek and 
Latin languages, answer this fact. The tree cannot be 
bad which produces such fruit. It is unphilosophical to 
doubt the adequacy of a cause to produce a given clfect, 
when we see that the effect is constantly produced by that 
cause ; and it is unphilosophical to search for another cause, 
when we have found one that is sufficient. If the study of 



65 

the ancient languages has been found, by long experience, 
to discipline and nourish the intellectual faculties, why 
should we doubt that it is efficacious for that purpose? 
Why should we go about to seek for something else, that if 
it succeed will but answer the same purpose — and if it fail, 
leaves us entirely destitute ? One will flippantly tell us 
that it is spending too much time about words, which could 
be better employed about things. The great British lexi- 
cographer has unintentionally given some countenance to 
this notion, in the Preface of his Dictionary. A man, who 
had accomplished such a labour, might be permitted, at its 
close, to feel the departure of the spirit which had sustained 
him in its progress, and in the pathetic melancholy of 
taking leave, so eloquently expressed as almost to draw 
tears from the reader, he might be allowed even to depre- 
ciate his own work, by admitting that " words are the 
daughters of earth, and that things are the sons of heaven." 
But even the authority of Dr. Johnson cannot be permitted 
thus to degrade the pedigree of words, or diminish their 
importance. Articulate sound is from heaven. Its origin 
is divine. The faculty of speech is the immediate gift of 
Him who made us, and its destitution (which his good 
Providence sometimes allows to occur) is felt to be a 
great calamity. Language — words — are the exercise of 
this faculty, as thought is the exercise of the faculty 
of thinking. The one is worthy of improvement, as well 
as the other — nay, we can scarcely conceive of their 
separate existence, or their separate cultivation — and 
hence the first step in the instruction of the dumb is to 
teach them the use of language. Words without thought 
are idle and vain. Thought, without the power of expres- 
sing it, is barren and unproductive. " Proper words in 
proper places," is the point we all strive to attain ; and 
this is what constitutes the perfection of the power of 
communicating with each other. It is true, therefore, that 
" words are things ;" and there is no better proof of it than 

9 



66 

this, that the most extraordinary, may I not say the most 
vulgar error sometimes obtains currency, by means of an 
epigrammatick sentence, by the mere charm of the colloca- 
tion of words. The fact is, that they occupy our attention 
throughout our lives; and a greater or less command of 
them is one of the chief visible distinctions that mark the 
different orders of intelligence. The child is taught to speak, 
to spell, and to read — the youth to declaim and to compose 
— and the man strives perpetually to improve and perfect 
himself in the use of language, by frequent exercise, and 
the study of the best models. Demosthenes is said to have 
copied the history of Thucydides eight times with his own 
hand, and to have committed the greater part of it to 
memory, merely to improve his style. His orations were 
composed with the utmost care ; and they were retouched, 
improved, and corrected with the minuteness of a Flemish 
painter — even to the alteration of parts of words. He was 
never satisfied till he had given the highest possible finish 
to his work. Was this an idle labour 1 More than two 
thousand years have since rolled by ; and the language of 
Athens, in the days of Demosthenes, cannot be said to be 
now spoken in the world. Yet is he confessed to be the 
undisputed master in his noble art. His orations, said by 
a strong figure to have been as an earthquake in ancient 
Greece, still agitate the bosom which is sensible of the 
powers of eloquence, and offer the best model to its votaries. 
Like the fine remains of the Grecian chisel, they stand in 
severe, but beautiful and commanding simplicity, as if con- 
scious that their title to respect, being founded in nature 
and in truth, though perfected by consummate skill, was 
equally available in every age.* 

* Cicero not only studied the Greek language, but to such an extent as to 
be able to declaim in it, and to excite the strong but melancholy admiration 
of Appolonius. " As for you, Cicero," he said, after hearing him declaim in 
Greek, " I praise and admire you : but I am concerned for the fate of Greece. 



67 

If it therefore be conceded that the study of the ancient 
languages is calculated to assist us in what is disparagingly 
termed the learning of words, or, as it ought to be express- 
ed, in acquiring a good style — that it improves the taste, 
and corrects the judgment — this, though but a part of its 
merits, would go far to vindicate its right to a place in 
every system of liberal education. 

Sometimes it is objected, as it was by the principal of an 
academy, already quoted, that an acquaintance with these 
languages is ' ornamental,' but not ' useful.' The meaning 
of this objection depends upon two words, which, appear- 
ing to be exact, are notwithstanding, as ambiguous, per- 
haps, as any in our vocabulary. They are often used 
without a definite sense in the mind of the speaker, and 
very seldom with any certainty of the same understanding 
on the part of the hearer. If it were necessary to endea- 
vour to be precise on this subject, we might be permitted 
to say, that in the opinion of many very intelligent people, 
nothing is properly ornamental that is not in some way 
useful. But when we have thus disentangled ourselves of 
one perplexing word, we are obliged to encounter another. 
What is useful, and what is not useful? Are mankind 
agreed about it? By no means. How then are we to 
determine what is useful ? The answer seems to be this — 
we are to arrive at a conclusion by considering man in his 
various relations, and thence inferring, as we justly may, 
that every thing is useful which contributes to the improve- 
ment or the innocent gratification of himself or of others, or 
qualifies him more effectually or acceptably to perform 
his duties. Does any one object to those exercises of 
youth, which give a graceful carriage to the body ? Are 
they not admitted to be useful ? And is it less important to 

She had nothing left her but the glory of eloquence and erudition, and you 
are carrying that too to Rome." 



68 

give a graceful carriage to the mind I Are good manners, 
the external graces, worthy to be cultivated, because they 
give pleasure to ethers ? And are the graces of the intel- 
lect to be entirely neglected? Is the generous youth to be 
told that nothing is necessary but to be able to compute 
the cost of fifty bushels of corn ? The proprieties, and even 
the elegancies of life, when thev do not run away with the 
heart, nor interfere with the performance of serious duties, 
are well deserving our attention. But let it not be ima- 
gined, that in thus insisting upon the general argument of 
experience — the greatest of all teachers — in favour of 
classical learning, or in answering one or two particular 
objections, it is meant to be conceded, that it cannot be 
vindicated upon original grounds. It can be, and it has 
been, repeatedly and triumphantly shown, that these un- 
equalled languages, which, as was long ago said of them, 
" have put off flesh and blood, and become immutable," 
are precisely calculated to perform the most important 
general offices of a liberal education, in a manner that no 
other known study will accomplish. They awaken atten- 
tion — they develope and employ the reasoning faculty — 
they cultivate the taste — they nourish the seeds of the 
imagination — give employment to the memory — and, in a 
word, they discipline and invigorate, in due proportion, all 
the intellectual powers, and prepare them for orderly and 
effective exertion in all the varied exigencies which may 
require their action. Nor is this all. They lay the foun- 
dation of that learning which will abide with us, and in- 
crease our enjoyments in all the vicissitudes of life. 

But the limits of a discourse would be unreasonably 
transcended, by an attempt to enter into a more particular 
examination of this subject. Nor is it necessary that I 
should thus trespass upon your patience, already so large- 
ly taxed — Abler heads, and stronger hands — strong in good 
learning — have been repeatedly employed upon the work 
— and I should only enfeeble their demonstrations, by at- 



69 

tempting to restate the process. As a witness, however, 
stating the result of his observations, confirmed by the 
observations of others, I may be allowed to say, that to a 
young man, entering upon the study of a liberal profession, 
a thorough groundwork of classical education is like a 
power gained in mechanics, or rather it is the foundation 
wanted by Archimedes for his fulcrum ! It gives him a 
mastery of his studies which nothing else can supply. Of 
its other influences, allow me to quote to you the testimony 
of a distinguished female, who, to uncommon opportunities 
united extraordinary genius and power of observation, and 
is entirely free from all suspicion of partiality. " The 
English Universities, (says Madame de Stael, in her ' Ger- 
many,') have singularly contributed to diffuse among the 
people of England that knowledge of ancient languages and 
literature, which gives to their orators and statesmen an 
information so liberal and brilliant. It is a mark of good 
taste to be acquainted with other things besides matters of 
business, when one is thoroughly acquainted with them ; 
and, besides, the eloquence of free nations attaches itself 
to the history of the Greeks and Romans, as to that of 
ancient fellow countrymen. * * * * The study of lan- 
guages, which forms the basis of instruction in Germany, 
is much more favourable to the progress of the faculties in 
infancy, than that of the Mathematics and Physical sci- 
ences." For this she quotes the admission of Pascal. 

Some part of the doubt, which, in this country, has been 
insinuating itself into the public mind, is owing to the im- 
perfect and insufficient manner in which the languages 
have been taught ; or rather, it should be said, in which 
they have been learned ; for there has probably been at 
all times a disposition to teach them. Enough has not 
been acquired to fix a permanent taste in the student him- 
self, or to demonstrate its value to others. The conse- 
quence is, that the graduate suffers his little stock to decay 
from neglect, and his parents and friends exclaim that 



70 

learning is of no use. Another consequence is, that there 
is no scholar-like mind, to exert its influence upon the com- 
munity, and operate upon the mass of public opinion. The 
corrective is in more thorough teaching. It will require 
more time and more labour from the student. But time 
thus employed, will be well employed. And as to labour 

if he desire to arrive at excellence of any sort, he can 

learn nothing better than how to apply himself with dili- 
gence to the work that is before him. There is a great 
deal of affectation in the world, of facility and expedition in 
the performance of intellectual tasks — of doing things 
quickly, and without preparation or exertion, as if by an 
inspiration of genius, and differently from those, who, by 
way of derision, are called plodders ! It is a poor affecta- 
tion. Sometimes it is maintained at the expense of sin- 
cerity, by concealing the pains that are really taken. 
Oftener it is only the blustering of conscious weakness and 
indolence. The highest and surest talent — that which 
will hold out longest, and often reach the greatest eleva- 
tion — the only talent, I might almost say, which is given 
to man for intellectual achievement — is the talent of 
applying his faculties to produce a good result — that is, of 
labouring with success. No one need be ashamed of pos- 
sessing, of exercising, or of cultivating it. The great les- 
son of life is to apply ourselves diligently to what is before 
us. Life itself is but a succession of moments. The larg- 
est affairs are made up of small parts. — The greatest rep- 
utation is but the accumulation of successive fruits, each 
carefully gathered and stored. The most learned scholar 
began with learning words. Every day is by itself a day 
of small things. But the sum of our days makes up our 
life— and the sum of our days' work makes up the work of 
our life. Let every one, therefore, who would arrive at dis- 
tinction, remember, that the present moment is the one he 
is to improve, and apply himself diligently to its improve- 
ment. 



ARGUMENT, 



IN THE CASE OF THE CHEROKEE NATION vs. THE STATE 
OF GEORGIA, BEFORE THE SUPREME COURT OF THE 
UNITED STATES, MARCH 5, 1831. 



Motion for an injunction to prevent the execution of certain acts of the legis- 
lature of the state of Georgia, in the territory of the Cherokee nation of In- 
dians, on behalf of the Cherokee nation; they claiming to proceed in the 
supreme court of the United States as a foreign state against the State of 
Georgia ; under the provision of the constitution of the United States, 
which gives to the couit jurisdiction in controversies in which a state of 
the United States and the citizens thereof, and a foreign state, citizens, or 
subjects thereof, are parties. 

Mr. Sergeant, in support of the motion for the injunc- 
tion, after recapitulating the principal heads of the bill, said, 
that in the brief exposition to be presented of the case of the 
complainants, he should confine himself strictly and entirely 
to the judicial aspect of the question, avoiding all political 
considerations, and every topic which did not conduce di- 
rectly to a legal conclusion. That he would endeavour still 
further to simplify the matter, by confining himself, as far 
as possible, to the very party before the court, the Cherokee 
nation : without wandering into the discussion of questions 
about Indians in general, their condition and rights, which 
must necessarily be vague and indefinite. Each case must 
at last depend, a few general principles being first settled, 
upon its own particular circumstances. 

With this view, and within these limits, he would con- 
sider, and endeavour to establish the following propositions. 



72 

1. That the parties before the court were such as, un- 
der the constitution, to give to this court original jurisdic- 
tion of the complaint made by the one against the other. 

2. That such a case or controversy, of a judicial nature, 
was presented by the bill, as to warrant and require the 
interposition of the authority of the court. 

3. That the facts stated by the complainants, exhibited 
such a case in equity, as to entitle them to the specific 
remedy by injunction prayed for in the bill. 

In the present stage of the inquiry, and for the purpose 
of this motion, the statement in the bill was to be received 
as true. The points before mentioned, therefore, being 
made out, there could be no doubt of the right of the 
complainants to an injunction against the state of Geor- 
gia, to issue immediately, and to continue until the com- 
ing in of an answer sufficient to dissolve it ; or until it 
should be merged in the general injunction upon a de- 
cree in the cause. These points he would now proceed to 
consider. 

1. The power relied upon is contained in the second 
section of the third article of the constitution of the United 
States, limited afterwards by the eleventh amendment. 
" Section 2. The judicial power shall extend to all cases 
in law and equity arising under this constitution, the laws 
of the United States, and treaties made, or which shall be 
made under their authority, &c. to controversies between 
two or more states, between a state and citizens of another 
state, between citizens of different states, between citi- 
zens of the same state claiming lands under grants of dif- 
ferent states, and between a state or the citizens thereof, 
and foreign states, citizens or subjects." " In all cases 
affecting ambassadors, other public ministers and consuls, 
and those in which a state shall be a party, the Supreme 
Court shall have original jurisdiction. In all the other 
cases before mentioned, the Supreme Court shall have 



73 

appellate jurisdiction, both as to law and fact, with such 
exceptions and under such regulations as Congress shall 
make." 

The first of these clauses specifies by classification, the 
cases to which the judicial power of the United States 
shall extend, comprehending such as from the nature of 
the subject matter, or from the character of the parties, 
were proper for that jurisdiction. The second distributes 
the authority given by the first, among the courts of the 
union, assigning to cases of national jurisdiction their ap- 
propriate forum. It is subordinate to, and in execution of 
the former. 

There can be no doubt, that under this article all cases 
" arising under treaties" are cases cognizable by the judi- 
ciary of the United States. They are within the very 
words of the article. The reason for including them is 
obvious, and entirely conclusive. Treaties are declared 
to be " The supreme law of the land." Article 6, sec- 
tion 2. They are placed, in this respect, upon the same 
footing with the constitution of the United States and acts 
of congress. As acts of national law, it was equally essen- 
tial that the national power should be adequate to their 
construction and their execution, by its own exertion, 
without dependence upon any other authority, and with 
that uniformity which could only be secured by a supreme 
judicial tribunal. As acts of national faith, binding upon 
the honour, and involving the relations and peace of the 
whole nation, they had even a stronger claim to the cog- 
nizance of the national judiciary. That they are entitled 
to it, in some of the courts of the union, is not to be denied 
or disputed. The jurisdiction of this court, in its original 
or its appellate exercise, as certainly extends to them under 
the constitution. 

The original jurisdiction of the supreme court, so far 
as concerns the present question, depends upon the fact 

10 



74 

that a state, that is, a state of this union, is a party. It 
matters not who may be the other party. The dignity of 
a state entitles the case in which it is a party, to the juris- 
diction of the highest tribunal. Chisholm's Ex. vs. State 
of Georgia, 2 Dull. 419. State of Georgia vs. Brailsford, 
2 Dall. 402, 415. 

The eleventh amendment of the constitution does not 
operate, in terms, upon the original jurisdiction: but upon 
the judicial power of the United States, in certain cases. 
" The judicial power of the United States shall not be 
construed to extend to any case in law or equity, com- 
menced or prosecuted against one of the United States by 
citizens of another state, or by citizens or subjects of any 
foreign state. Its operation upon the original jurisdic- 
tion of the supreme court is only consequential, by ex- 
cluding altogether from the cognizance of the federal 
judiciary, certain cases assigned to it by the first clause 
of the original article, and which in the distribution of 
the second clause had been made subjects of that original 
jurisdiction. 

This amendment operates by way of limitation or ex- 
ception. It applies only to the excepted cases, leaving 
the jurisdiction and the power, in all other cases, exactly 
as they stood under the original article. What arc the 
cases specified as exceptions ? They are very plainly 
and distinctly defined, suits against any one of the United 
States " by citizens of another state, or by citizens or sub- 
jects of any foreign state." With this exception, which 
is too plainly expressed to admit of doubt or construction, 
the whole of the third article remains in full force, and 
the jurisdictions created by it, as to their extent and dis- 
tribution, arc unaltered. The original jurisdiction of this 
court, therefore, still exists, wherever it existed before, 
unless it be in the case of a suit commenced against a state 
of the union " by citizens of another state, or by citizens 



75 

or subjects of a foreign state." It is in full force where 
a " foreign state" is one party, and a " state" of this union 
is the other party, or where two states are parties. Co- 
hens vs. Virginia, G Wheat. 264. 

It has sometimes been intimated that the Chefokees 
are neither citizens of any " state," nor " citizens or sub- 
jects of any foreign state." Supposing for a moment that 
this imperfect view were correct, what would be the legal, 
or rather the constitutional result of it ? The limitation 
or exception would not apply to them ; and (a state being 
a party) they would have a right to sue in this court, 
unless, indeed, it were further alleged that they were 
some how put out of the protection of the law, and inca- 
pacitated to sue at all, which, it is believed, has never 
been suggested. The matter would stand thus : the case 
arises under a treaty, and is therefore cognizable by the 
courts of the union. A " state" is a party. The juris- 
diction, then, among the courts of the union, belongs to 
the supreme court, being given to that tribunal by the 
constitution as originally made, and not taken away by 
the amendment. Such would be the result of that argu- 
ment. 

That question, it was admitted, did not arise here; and 
it was adverted to, only for the light thrown by it upon the 
case that was under discussion. The amendment, it was 
known from its history, was intended to prevent suits 
against " states" by individuals. Cohens vs. Virginia, 6 
Whcaton, 10G, 407. The description was meant to embrace 
all individuals who might sue. How are they describe 
ed ? By a classification understood to embrace them all ; 
" citizens of another state" (of the union) " or citizens 
or subjects of any foreign state : clearly showing that 
all who were not citizens of a state, must be in the mean- 
ing of the constitution, citizens or subjects of a foreign 
state. 



76 

The Cherokces, in this case, approach the court, not 
individually, hut in their aggregate capacity, as " the 
Cherokee nation of Indians, a foreign state." The proposi- 
tion asserted on their behalf is, that they are " a foreign 
state," with all the rights and attributes predicated of 
them in their bill of complaint. 

In what manner is this inquiry to be judicially pursued 1 
What lights are to be followed? What constitutes the 
judicial evidence of the existence of a foreign state, as 
such 1 Fortunately, we are furnished with an answer to 
these questions by settled and authorativc decisions, of this, 
the highest tribunal in the land. As to new states arising 
in the revolutions of the world, it is the exclusive right of 
governments to acknowledge them; and until such recog- 
nition by our own government, or by the government of 
the empire to which such new state previously belonged, 
courts of justice are bound to consider the ancient state of 
things as remaining unchanged. Rose vs. Himeley, 4 
Cranch, 292. Gelston vs. Hoyt, 3 Wheat. 324. United 
States vs. Palmer, 3 Wheal. G34. Divina Pastora, 4 
Wheat. 03, and note to 65. 

In matters of judgment, the ancient state, whatever it 
was, continues, until it is changed by a competent author- 
ity : and of that ancient state, of the changes, if any, it 
has undergone, the time of those changes, or its continuance 
to the present time, the acts of our government are 
authentic and decisive evidence. 

Of these acts, establishing judicially the existence and 
character of other states and nations, the most unequivocal 
and conclusive must be a treaty. It is the act of the 
nation ; in its nature, deliberate and solemn ; in its obliga- 
tion, most sacred ; and, besides its efficacy as a national 
compact binding the national faith and honour, it is made 
obligatory upon individuals, upon authorities and upon 
tribunals, by the constitutional declaration that it is " the 
supreme law of the land." 



77 

This principle being settled, as it must certainly be con- 
ceded to be, how does it apply to the present inquiry '{ 

From the beginning of the existence of the United 
States as a nation to the present time, there have been no 
less than fourteen public treaties made with the Cherokee 
nation of Indians ; one under the articles of confederation, 
and thirteen under the constitution ; all of them with the 
solemnities that belong to public national compacts made 
between independent states or nations. 

The first of these treaties was made as long ago as the 
year 1785; and the last as recently as the year 1819. 

These treaties are at the present moment in full force ; 
and on the face of them they bear, that on the one side 
they are made by the United States, on the other, by the 
Cherokee nation. 

In inquiring, judicially, into the fact, the first remark 
that presents itself is, that the aggregate existence of the 
Cherokees, with capacity to enter into binding national 
compacts, is ipso facto admitted. How can this be, if they 
are not a nation or state? They act by public agents, 
few in number, representing the aggregate or community, 
and binding all the individuals of which that community is 
composed, in the same manner as the public agents of the 
United States, on the other side, contract for the whole 
people of the United States. How could this be, if there 
were not such a community or state 1 

But it is not by the inference only (irresistible as it is) 
that the fact is established. It is asserted in terms in 
every treaty, from the first to the last. The treaty of the 
28th November 1785 expressly styles them a . " nation." 
Sect. 6. In the succeeding treaties, the same description 
is applied in almost every line, as any one who will be at 
the trouble to examine them will perceive. See particu- 
larly the preamble of the treaty of Holston, Art. 1, and the 
treaty of Washington in 1819. 



78 

The subjects, too, of these treaties are unequivocally 
of national character and concernment: war; peace; 
exchange of prisoners; national limits; mutual rights, 
which nations only could claim or enjoy ; and mutual 
duties, which nations only could fulfil. 

The obligations are national ; the sanctions are national ; 
the breach is national ; and the impress of national char- 
acter, as belonging to the Cherokee Indians, is thus deeply 
and inseparably fixed upon the treaties in every variety of 
way, and with them transferred to our statute book as a 
part of the " supreme law of the land." Whatever others 
may say, so long as these treaties remain in force, the 
Cherokee Indians are, by our laws, a state or nation. 

It was not now a question, what the United States might 
heretofore have done, or what they may do hereafter. 
That belonged properly to another head of inquiry. The 
present purpose was only to inquire judicially into the fact 
as now existing, according to the established principle 
already stated. 

Following the rule of interpretation, or rather, of evidence 
thus established, were not the Cherokee Indians a "foreign 
state," within the meaning of the constitution? It would 
be sufficient to answer, that they certainly are not a state 
of this union. What then can they be but a foreign state? 
The constitution knows of but two descriptions of states, 
domestic and foreign. Those which are not included in the 
former class must necessarily fall into the latter. Nothing 
can be clearer than this; following either the language or 
the meaning of the constitution. There is no third descrip- 
tion in that instrument ; and there is no case of a state, 
which was not intended to be within the scope of its judi- 
cial authority, whenever circumstances might make it a 
duty to ourselves or to others to interpose its exercise. It 
is true that the Cherokee nation have no part or right in 
the constitution of the United States, because they arc a 



79 

foreign state, and that constitution is the compact only of 
the states and citizens of this union. But there is a power 
given by the constitution which they may invoke when 
they have a demand of justice ; a power conferred upon 
the authorities of the union, and in its nature conclusive. 
What reason can be given why it should not equally ex- 
tend to them as to all other states. 

The constitution itself created no new state of things. 
It operated upon a state then existing, and of very long 
standing. From the first settlement of the country by 
Europeans, the Cherokees existed as an independent nation. 
They never became incorporated with the European 
settlers, nor subjected by them. It is only by one of these 
modes, or by utter extinction, that they could cease to 
exist as a nation. Such as they were at the first, such 
they have continued to be, and such they now are. If any 
change has ever taken place in their condition, and 
especially one so material as to destroy their independent 
national character, it is for those who assert it to show 
when, and how, this great change was effected. The 
history of the case is in this respect the law of the case. 
In what part of their history is it to be found? The 
European claim of discovery never asserted their subjec- 
tion or extinguishment as its consequence. It asserted 
nothing in respect to them. It only fixed the limits of the 
pretensions of different European states or sovereigns 
between themselves: each maintaining an exclusive right 
to what he had discovered, and within his discovery to 
deal with the natives according to his own will, without 
interference by the others. The conduct of one was no 
rule or law to his neighbour, except as it evidenced the 
common consent to abstain from interference. Each was 
the absolute master of his own conduct, and made the law 
for himself within his own limits. If he had strength 
enough to do so, he made the law for the native inhabitants 



80 

according to his own will and pleasure, with more defer- 
ence to the suggestions of his own passions and appetites 
than to the dictates of justice or of mercy. In some 
portions of the discovered hemisphere they were hunted 
with blood hounds and exterminated. Whole races of men 
have long since disappeared from the face of the earth 
which they occupied. Jn others, their soil was forcibly 
seized hy the invaders, and the native inhabitants became 
the slaves of their conquerors. Where these things hap- 
pened, nations, of course, < cased to exist. Such was, then, 
the stern policy of the discoverer. But that is not our 
case. 

He would not enter now into a discussion of the abstract 
question of right as it stood between the European disco- 
verers and the native inhabitants, nor attempt to set up 
here, on behalf of the latter, lights which (however they 
might have stood upon original grounds) were now to be 
no otherwise considered in a judicial tribunal, than as they 
had been settled by a long course of time and practice, and 
by judicial decisions, including a decision of this court, to 
which he should hereafter refer, lie was satisfied to take 
the matter as he found it; to disturb nothing that was past 
or settled, but to inquire simply into the fact, as it was 
when the constitution was made, and as it still is. 

With this view he proceeded to state, that the claim of 
I freat Britain never asserted the incorporation or subjection 
of the native inhabitants within her discovery, nor the 
extinguishment of their national existence and character. 
It was .always a limited claim, and left to them all beyond 
its limits. Sec Johnson vs. M'Jntosh, 8 Wheat. 543. With 
the exception of this limited claim, and what has since 
been yielded by treaty, the Cherokee nation of Indians is 
the same nation now, that it was when the soil, of their 
country was fust pressed by the foot of an European. 
They occupy this moment a portion of the very territory 



81 

b then ackr.- their auth'. 

ged the parties; on tin 
but each in su< 
J the ol 

- 

- . u authentic 

out 1 

bat a /<•, 
It is not 

j 

■ 
sub- 
with 
and i 

• 

2 into 
a ;^d aliiar. c 

! 
- 
i 

11 



82 

between the United States on the one side and the Chero- 
kee Indians on the other, and mutual faith was solemnly 
pledged between parties admitted (<> be competent to con- 
tracl as nations. 

This was iln: state of things when the constitution of the 
United States was formed to establish a more perfect union. 
Can any thing be stronger to fix the construction of that 
instrument upon the point in question? A treaty with the 
Cherokee Indians, made under the authority of congress, 
within two years only from the time when the convention 
completed its labours, was already in the statute book, and 
was one of the treaties " made" which that constitution 
dei lared should be the "supreme law of the land," attest- 
ing the existence of the nation, as a foreign state, and its 
competency in that capacity, though within the limils of a 
state or states of this union, to contract with the United 
States. Besides its other sanctions -sufficient if public 
faith be regarded — this treaty lias the sanction, in a peculi- 
ar manner, of the constitution itself. 

Nor had this state of things arisen from haste and 
inconsiderateness, or the want of due deliberation. Even 
before the confederation was formed, congress had as- 
sumed and exercised authority over this subject, as one 
which naturally belonged to them. (Journals of 13th 
July, and 16th December, 1775: January 27th, March 
8th, April 10th, 20th, May 27th, June llth, 1776; 
August liith, September 19th, December 7th, 177<>.) 
In tin; last mentioned year (1776) they made war 
upon (he Cherokees for committing hostilities on South 
Carolina. (Journals, December, 2d, 1777.) They distinct- 
ly asserted the power of Avar and peace towards the In- 
dians, and denied it to the Stales. (Journals, 5th March 

1779.) In 17N1 they sanctioned a negotiation for peace 
with the Cherokees. (Journals, 1st November, 1781.) From 
this negotiation, proceeded the treaty of Hopewell (1785), 



the ] t out in the bill In ] 

■ 
to protect tfc 

for that ] 1788.) In 

17S7 the attention of coi 
particularly drawn to th< of then 

The 

tion about the 
ration (which - ot in tfc free 

from obscuril 

$ Creeks. ' 
committe< r from 

made a report CJ2 Joui 

hich the question was fully examined, and the | 
er of congi • asserted and n 
the articl* 

boon rai ' 

tfj«r 

of the I 

d that the I 
right of any mim limiU be not inf: 

ed ot violated? ' pon th oi the 

founded Whafo the 

merits of thu d by the 

the Urtl hich omitted the limi- 

tations in the articles o( o, and g 

of th- before mentioned) "i - " : Thai 

• • ■ d deliberate!} 

on in the 
that by the < 01 on of the 

nations, within or without the limi 

ed by tl 
committee of cor,:-' powej 



84 

them ; it would be inconsistent with the power of con- 
gress. 

In what light, then, must this constitution be considered 
as regarding the Indian nations? After the reference 
which has just been made, the answer is plain and 
unavoidable. In adopting, without exception, treaties 
previously made, it adopted the treaty of Hopewell, 
which was one of them, and immediately in view. In 
conferring upon the president and senate the treaty-ma- 
king power, it gave to them the powers which had 
been exercised by congress under the same terms in 
the articles of confederation, including that of making 
treaties with the Indians. In giving to congress the 
power to regulate trade with the Indians, it gave to them 
all the power which had been exercised by congress 
before, freed from the embarrasment of the obscure pro- 
viso which had caused some question, and therefore, 
if not enlarged, at least rendered more firm and indis- 
putable. It plainly, purposely, and unequivocally as- 
signed to the federal jurisdiction, in its different depart- 
ments, the whole subject of the Indian nations, as one 
which belonged exclusively to the union, and not to 
the states; employing for this object, in substance, the 
clauses in the articles of confederation which had been 
found efficacious before, and rejecting only such as 
had been the occasion of doubt or embarrasment. As 
to the nations themselves, it regarded them as they 
had hccn regarded before, as states, not of this union, 
and therefore foreign, and capable of making treaties 
with the United States. Whoever will examine the re- 
port before adverted to, will be fully satisfied that these 
were the views of the public men of that day, and that 
they were entertained upon the strongest and the soundest 
reasons. Occurrences of the present day give to them 
additional strength. 



85 

Under the constitution, the subject again received a 
deliberate, and peculiarly solemn examination ; chiefly as 
to the expediency of the mode of proceeding; for the 
power was not questioned. In the year 1790 (August 
11), President Washington sent to the senate a message 
in relation to the Cherokee Indians, which concluded with 
asking the advice of the senate upon three questions. 
The first of them was whether overtures should be made 
for arranging a new boundary by treaty with the Che- 
rokees. The second related to the mode of compensating 
them for the land they might cede. The third was as 
follows : " shall the United States stipulate solemnly to 
guaranty the new boundary which may be arranged 1 ?" 
The senate resolved to advise and consent that the pre- 
sident should at his discretion cause the treaty of Hope- 
well to be carried into execution, according to the terms 
thereof, or enter into arrangements for a new boundary, 
compensating the Cherokees for the lands they might 
cede. In answer to the third inquiry, the senate came 
to the following resolution. " Resolved, in case a new or 
other boundary than that stipulated by the treaty of 
Hopewell shall be concluded with the Cherokee Indians, 
that the senate do advise and consent solemnly to guar- 
anty the same." Under this deliberate expression of the 
advice and consent of the senate, the treaty of Holston 
was made on the 2d July, 1791 ; and was duly submitted 
to and approved by the senate. It is still in full force, 
as a treaty between the United States on the one part 
and the Cherokee nation of Indians on the other ; with 
the solemn guarantee on the part of the United States 
which the senate had advised. Eleven treaties have since 
been made, the last of them in the year 1819, adopting 
and continuing the same guarantee. As to the state and 
condition of the Cherokees, they are all of them perfectly 
clear, and especially the treaties of 1817 and 1819. 



86 

The existence of the Cherokee nation of Indians, as a 
state, and a foreign state, is thus brought down to the 
present moment. The evidence of the public acts of the 
United States is conclusive. It is impossible to question 
the authority to make these treaties. The constitution 
plainly intended to give the power to make them. This 
is no constructive power, implied from doubtful clauses, 
or inferred from other powers or from general words. 
The very case was within the view of the statesmen who 
framed that instrument. They adopted the provisions in 
the articles of confederation which had confessedly given 
the power, and omitted the one which had thrown a doubt 
upon it, for the very purpose of cutting off all dispute 
or question. It is not, therefore, a construction supported 
merely, or even principally, by a practice of forty years 
without question ; though such a practice, concurred in 
by all the departments of the government, must even be 
deemed a venerable authority. The history of the con- 
stitution, the language of tiie constitution interpreted by 
its history, the known intention of those who framed it; 
fully justify the assertion, that this power could never, at 
any period, have been questioned, without doing flagrant 
violence to the known and manifest meaning of that instru- 
ment. There is not a power of the federal government 
more certainly conferred than this. 

These, then, are treaties made in pursuance of the 
constitution. They are in full force. They stand in the 
statute book, with all the sanctions of treaties with fo- 
reign states ; and we are in the possession and enjoyment 
of the benefits derived from them. Can we under these 
circumstances deny that which they necessarily import ? 
Can we, consistently with any right rule of interpreta- 
tion, or with the common obligations of good faith, call 
in question the character of the party, announced and 
admitted upon the face of the instrument itself, especially 



87 

when by so doing we impair or take away from him the 
stipulated advantages of his compact. If it were mo- 
rally or politically admissible, is it judicially possible, 
while the government acknowledges, as it continues to 
do, the existence and binding obligation of these trea- 
ties?* Can any court deny to them their natural con- 
struction ? 

The articles of agreement and cession between the 
United States and (he state of Georgia, of the 24th of 
April 1802, are equally conclusive upon the point in ques- 
tion, by the concession of Georgia herself. The United 
States stipulate to extinguish the Indian title to lands 
within the state of Georgia, for the use of Georgia, " as 
soon as the same can be peaceably obtained upon rea- 
sonable terms." There is an admission here that there 
was an Indian title ; that it could only be extinguished 
with the consent of the Indian nation ; and that the 
United States alone had the power to extinguish it, be- 
cause the United States alone had the power to make 
treaties with the Indians. The act of congress of 30th 
of March, 1802, commonly called the Indian Intercourse 
act, speaks the same language in all its provisions. That 
act was made in fulfillment of the obligations of justice 
contracted by treaties. It was nothing more than had 
been solemnly guarantied. The United States were bound 
to make such laws, and they are bound to execute them : 
a failure in either would be a violation of the national 
faith so clearly pledged. They are bound to respect 
the Indian boundaries and rights themselves — they are 
bound to protect them from encroachments by states, or 
hy citizens of the United States ; because they have en- 



* The act of the last session expressly declares, in a proviso, that they 
are not to be impaired or questioned. 



88 

gaged to do so, and have received the equivalent for their 
engagement. 

Judicial decisions, in accordance with this view, are 
not wanting. In Johnson vs. M'Intosh, 8 Wheat. 543, 
the Chief Justice, in delivering the opinion of this court, 
assumes the existence of the Indian nations as states, by 
ascribing to them powers, and capacities and rights, which 
belong only to that character. In page 592, is the fol- 
lowing passage. " Another view has been taken of this 
question, which deserves to be considered. The title of 
the crown, whatever it might be, could be acquired only 
by a conveyance from the crown. If an individual, 
might extinguish the Indian title for his own benefit, or, 
in other words, might purchase it, still he could acquire 
only that title. Admitting their power to change their 
laws and usages, so far as to allow an individual to se- 
parate a portion of their lands from the common stock, 
and hold it in severalty, still it is a part of their terri- 
tory, and is held under them by a title dependent on their 
lairs. The grant derives its efficacy from their will: 
and, if they choose to resume it, and make a different 
disposition of the land, the courts of the United States 
cannot interpose for the protection of the title. The per- 
son who purchases lands front the Indians within their 
territory, incorporates himself with them, so far as respects 
the property purchased; holds his title under their pro- 
tection, and subject to their lairs. If they annul the grant, 
we know of no tribunal which can revise and set aside 
the proceeding." Their sovereign power within their own 
territory : their authority to make, to administer, and to 
execute their own laws ; to give titles and to resume them, 
to do, in short, what states or nations only can do; are 
here distinctly admitted. 

In Goodell vs. Jackson, in the court of errors in New 
York, the question was discussed as to the character of 



89 

the individuals composing the Indian nations. They were 
decided to be aliens. If the subjects of a state be aliens, 
the state itself must be an alien state, a foreign state. 

In Holland vs. Pack, Peck's Reports, 151, the very 
question was directly presented and directly decided by 
the court of appeals of Tennessee in the year 1823. It 
was an action brought against a Cherokee innkeeper, re- 
siding in that part of the nation which lies within the 
limits of the state of Tennessee, for the loss of the goods 
of a guest The question presented by the pleadings was, 
by what law the case was to be governed, the law of 
Tennessee or the law of the Cherokees. The court de- 
cided that the latter was to govern. In the opinion, which 
is full and elaborate, the whole subject is examined ; and 
the conclusion pronounced by the court is, that .the Che- 
rokees are an independent nation, with the exclusive power 
of legislation within their own territory. 

This point, of the national character of the Cherokee 
Indians, is put to rest by two of the treaties, in terms 
which admit neither of doubt or controversy. The treaty 
of the 8th July, 1817 (Art. 8) makes a provision for se- 
curing; certain reserves of land (o those of the Cherokees 
who might choose to become citizens of the United States. 
This provision is referred to and adopted by the treaty of 
1819, article 2. It is too obvious to require a remark, that 
this stipulation necessarily characterises them as aliens, 
then in a state of alienage, or of allegiance to a foreign 
state, but capable of becoming citizens of the United 
States at their own election, and until that election should 
so incline them, of remaining in the condition in which 
they then were. How were they to become citizens'? 
It could only be upon the terms prescribed by the na- 
turalization laws of the United States, of renouncing their 
foreign allegiance. How could they renounce it if none 
such existed? It may not be amiss to add, that this 

12 



90 

provision applied to individuals and to reserves of land 
within the limits of states of this union. A list of them 
is appended to the treaty of 1819, with a description of 
their locality. It will be there found that the greater part 
of them were within the limits of the states. 

This review, upon the principles heretofore adopted in 
judgment, would seem to be sufficient of itself for a court 
sitting under the constitution and laws of the United 
States. But wherever the inquiry may be pursued the 
result will be the same. The Cherokee nation is a state. 
It has "its affairs and interests; it deliberates and takes 
resolutions in common ; and becomes a moral person, 
having an understanding and a will, peculiar to itself; 
and is susceptible of obligations and laws." This is the 
very definition of a state, according to the most approved 
writers on public law. Grotius, b. 1, c. 1, §. 14. B. 3, c. 
3, §. 2. Burlamaqui, vol. 2, p, 1, c. 4, §. 9. Vattel, b. 1, 
c. 1. It is a. foreign state, for it is not a state of this union. 
It is no part of our body politic. The Cherokees have no 
influence in our affairs, and no control over our conduct; 
and we have none in theirs, save what is given by treaty, 
and that is by mutual stipulation between the entire 
bodies politic, in their aggregate capacity, as equal con- 
tracting parties. 

It is no objection to this that they are inferior or 
dependent allies. A state is still a state, though it may 
not be of the highest grade, or even though it may have 
surrendered some of the powers of sovereignty (Vattel, 
b. 1, c. 1, § 5 and G) : as a man is still a man, though 
mutilated and deprived of some of his limbs. Such an 
argument, indeed, is destitute of all colour of support, 
for it supposes that by entering into a treaty the very 
rights are given up which are reserved by the treaty. 
This is an absurdity. 

Is there in the constitution of the United States 



91 

any thing to limit or alter this natural and unavoidable 
construction as applied to the question of jurisdiction? 
In other words, is it true that though " foreign states" to 
other intents, they are not " foreign states'' within the 
terms of the provision for the judiciary I 

The only conceivable suggestion to the contrary, if any 
there be, must be derived from the third clause of the 
eighth section of the first article. Congress shall have 
power, it is there said, " to regulate commerce with for- 
eign nations, and among the several states, and with the 
Indian tribes." The argument may be, that what are 
here called " Indian tribes" are specified, because they 
are not comprehended in the words " foreign nations ;" 
and therefore can not be considered as embraced by the 
words " foreign states," in the third article of the con- 
stitution. This, it will be observed, is a mere verbal 
criticism, which, if allowed to prove any thing, would 
prove far to much. The provisions arc framed for dif- 
ferent purposes and with different views, and are found 
in different parts of the constitution. The one relates 
to the legislature, the other to the judiciary. There is 
no incompatibility between them, nor is there any difficulty 
at all in letting (hem stand together, inasmuch as they do 
not belong to the same subject. 

In what sense is the word " tribes" to be considered 
as here used? Its original and most appropriate mean- 
ing is a subdivision of a state, nation or community, 
forming a constituent part of it, but set apart or distin- 
guished for the more convenient management of its affairs. 
Thus, Rome was divided into " tribes," in the first 
instance three, and finally thirty-five. Athens was 
divided into ten tribes. There were the twelve tribes 
of Israel, forming together one nation, under one head, 
until the revolt of the ten tribes, when they became two 
nations, and so continued until the ten were lost. The 



92 

constitution cannot have used the word in this sense. We 
know of no such subdivisions within the Indian nations ; 
and if there had been, no one will suppose that the 
power given to congress was only to deal with portions of the 
nations. Sometimes, it is true, this word is applied to 
wandering hordes, who have no territory ; no fixed resi- 
dence, and no organic structure. But this could not be 
affirmed of the Cherokee nation. They had a territory ; 
they had fixed boundaries ; they had laws and govern- 
ment; they were already parties to a treaty with the 
United States, and in that treaty were expressly denomi- 
nated a "nation." Whatever might have been the habits 
of individuals, the nation had a local habitation, and 
sufficient stability to be treated with as an organiz- 
ed community.* Was it meant to be excluded from 
the power of congress ? This word " tribes" will be 
found to occur frequently in the journals of the old con- 
gress, and especially in the report before referred to, 
of August 1787 ; where it is manifestly employed as 
synonymous or equivalent to "nations." If it be more 
comprehensive it might be used from greater caution, 
in order to cover the whole subject ; to comprehend tribes, 
if any such there were, which were not nations. It 
would not, therefore, exclude those which were nations, 
but they would be embraced by both the words. So 
it has been construed in practice. 

But if this verbal argument have any weight, we 
shall be obliged by it to concede that wherever it happens 
that different words are used, though occuring in different 
parts of the constitution and on different branches of 
power, they must necessarily mean a different thing. 
Then it will follow, that " a foreign state" and " foreign 



* The present principal town of the Cherokee nation will be found men- 
tioned in the earliest records of congress by the name of Chota. 



93 

nation" are different — that the federal judiciary has 
no jurisdiction in the case of a " foreign nation," and 
that congress has no power to regulate commerce with 
a " foreign state." In the tenth section of the first 
article, clause second (prohibiting the states from entering 
into alliances), the words employed are "foreign powers." 
This, upon the same principle, would exclude " foreign 
powers" from both the former articles. 

The same argument would perhaps take away the 
treaty-making power with the Indians from the United 
States. A treaty cannot well be made with those who, 
according to the constitution, as thus understood, have 
no capacity to fulfil their engagements, or even to be 
bound by them. 

It would work out a result still more repugnant to 
what was certainly intended. If the use of the word 
" tribes" in the first article excludes the application of 
the words " foreign states' 1 in the third, it must equally 
exclude the words " foreign powers" in the section just 
referred to (article first, section tenth, clause second.) 
What follows 1 That, the states individually are not 
prohibited from making compacts with the Indians, be- 
cause they are not " foreign powers." No one, it is 
believed, would contend for this. 

But has it ever been admitted as a sound rule of 
construction, justly applicable to the constitution, that 
a specification must necessarily restrain the general 
words which precede it, and can in no case be con- 
sidered as merely redundant 1 ? There are repeated in- 
stances in the same section, where such a rule would 
be fatal to the sense. See clauses five, ten, thirteen, &c. 

It is submitted, however, that the process of verbal 
criticism is not the correct mode of dealing with a 
constitution of government, where the grants of power 
are necessarily made in a few words. It must be inter- 



94 

preted in a different way. Some weight must be allowed 
to the general intention and design of the instrument. 
The judicial power of the United States was intended 
to be co-extensive with the legislative and executive, so 
as to form a government complete, within the range of 
its powers, in all its departments, and capable of inde- 
pendent existence. Osbourn vs. Bank of the United 
States, 9 Wheat. 818. 

The treaty-making power confessedly belongs exclusive- 
ly, to the United States. Treaties thus made are declared 
to be the supreme law of the land. " Cases arising under 
treaties" are, therefore in express terms assigned by the 
article under consideration to the federal judiciary. The 
subject belongs to the United States tribunals, and not to 
the tribunals of the states. Of this, there can be no dis- 
pute. Why then suppose it to be excluded from the 
original jurisdiction of this court ? A state of the union is 
a party, and it is the dignity of that party alone which 
entitles the case from its beginning to the attention of the 
highest tribunal. The character of the other party is 
in this respect of no importance. What reason can be 
assigned for an exclusion so contradictory ? Why should 
the constitution which says expressly that, in all cases 
where a state is a party, the supreme court shall have 
original jurisdiction, be made to say by implication, that 
in this case, where a state is a party, it shall not have 
original jurisdiction? To what jurisdiction would they 
be referred. The same argument which took away the 
alien character of the nation would equally destroy the 
alien character of the individuals composing it. They 
certainly are not citizens ; and if they be not aliens, what 
are they ? Outlaws. Declared outlaws, without a nation, 
and without protection. Public law abhors such a state 
of existence. It is not more essential in municipal arrange- 
ments that every thing capable of ownership should have a 



95 

legal and determinate owner, than it is in the great society 
of nations that every man should be bound by some alle- 
giance, should be a member of some community. The 
Cherokee Indians are willing to be so. They are so. 
They are more so now than they were at any former 
period. Guided by our counsels, aided by our efforts (for 
which we have taken much credit with the world) they 
have become civilized and enlightened, and attached to the 
arts of civilized life ; and are consolidating their advan- 
tages under a form of government instituted at the sugges- 
tion of one of our most eminent statesmen.* The preser- 



* The following is the speech addressed to them by Mr. Jefferson. 

My Children, Deputies of the Cherokee Upper Towns. 

I have maturely considered the speeches you have delivered me, and will 
now give you answers to the several matters they contain. 

You inform me of your anxious desires to engage in the industrious 
pursuits of agriculture and civilized life ; that finding it impracticable to 
induce the nation at large to join in this, you wish a line of separation to 
be established between the Upper and Lower Towns, so as to include all 
the waters of the Highwassce in your part ; and that having thus con- 
tracted your society within narrower limits, you propose, within these, to 
begin the establishment of fixed laws and of regular government. You say 
that the Lower Towns are satisfied with the division you propose, and on 
these several matters you ask my advice and aid. 

With respect to the line of division between yourselves and the Lower 
Towns, it must rest on the joint consent of both parties. The one you pro- 
pose appears moderate, reasonable and well defined ; we are willing to re- 
cognize those on each side of that line as distinct societies, and if our aid 
shall be necessary to mark it more plainly than nature has done, you shall 
have it. I think with you that on this reduced scale, it will be more easy 
for you to introduce the regular administration of laws. 

In proceeding to the establishment of laws, you wish to adopt them from 
ours, and such only for the present as suit your present condition ; chiefly 
indeed, those for the punishment of crimes and the protection of property. 
But who is to determine which of our laws suit your condition, and shall 
be in force with you ? All of you being equally free, no one has a right 
to say what shall be law for the others. Our way is to put these questions 
to the vote, and to consider that as law for which the majority votes — the 
fool has as great a right to express his opinion by vote as the wise, because 



96 

vation of their character as a state was essential to their 
happiness and even to their existence; it was essential, 
too, to enable them to fulfil many of their treaty obligations 
towards the United States. 

In conclusion, upon this point, Mr. Sergeant remarked 
that he would not be understood to question the power of 
the United States over the whole matter. He would not 



he is equally free, and equally master of himself. But as it would be in- 
convenient for all your men to meet in one place, would it not be better 
for every town to do as we do : that is to say, choose by the vote of the 
majority of the town and of the country people nearer to that than to any 
other town, one, two, three nr mors, according to the size of the town, of 
those whom each voter thinks the wisest and honestest men of their place, 
and let these meet together and agree which of our laws suit them. But 
these men know nothing of our laws. How then can they know which 
to adopt ? Let them associate in their council our beloved man living with 
them, Colonel Meigs, and he will tell them what our law is on any point 
they desire. He will inform them also of our methods of doing business 
in our councils, so as to preserve order, and to obtain the vote of every 
member fairly. This council can make a law for giving to every head of 
a family a separate parcel of land, which, when he has built upon and im- 
proved, it shall belong to him and his descendants for ever, and which the 
nation itself shall have no right to sell from under his feet. They will de- 
termine too, what punishment shall be inflicted for every crime. In our 
states generally, we punish murder only by death, and all other crimes by 
solitary confinement in a prison. 

But when you shall have adopted laws, who are to execute them ? Per- 
haps it may be best to permit, every town and the settlers in its neighbour- 
hood attached to it, to select some of their best, men, by a majority of its 
voters, to be judges in all differences, and to ex< eule the law according to 
their own judgment. Your council of representatives will decide on this, 
or such other mode as may best suit you. 1 suggest these things, my chil- 
dren, for the consideration of the Upper Towns of your nation, to be decided 
on as they think best, and I sincerely wish you may succeed in your laud- 
able endeavours to save the remains of your nation, by adopting industrious 
occupations, and a government of regular laws. In this you may rely on 
the counsel and assistance of the government of the United States. Deli- 
ver these words to your people in my name, and assure them of my friend- 
ship. 

THOMAS JEFFERSON. 
January 9, 1809- 



97 

undertake to say what congress might do. But until the 
power was plainly exercised, to the extent of abrogating 
the treaties, upon the responsibility which belonged to 
such a step ; those treaties would continue to be the law, 
and must be respected and executed as such. 

2. That a sufficient " case" or " controversy" was pre- 
sented to call for the exercise of judicial power. 

What constituted such a case 1 "A case in law or 
equity" is a term well understood, and of limited significa- 
tion. It is "a controversy between parties which has 
taken a shape for judicial decision." (Speech of Chief 
Justice Marshall in the matter of Nash alias Robbins, 
note to Bee, 277.) It is defined also in 9 Wheat. 819. 
" This clause" (1st clause, 2d sect. 3d art. Constitution 
United States) "enables the judicial department to receive 
jurisdiction to the full extent of the constitution, laws, and 
treaties of the United States, when any question respecting 
them shall assume such a form that the judicial power is 
capable of acting upon it. That power is capable of 
acting only when the subject is submitted to it by a party 
who asserts his rights in the form prescribed by law. It 
then becomes a case, and the constitution declares, that 
the judicial power shall extend to all cases arising under 
the constitution, laws, and treaties of the United States." 

To make such a case a controversy, there must be, I. 
Parties capable of suing and being sued. 2. A subject 
matter proper for judicial decision. 

1. It could not be questioned that here were such par- 
ties. They were within the very words of the constitu- 
tion. That clause admitted at the same time, that there 
might he subjects of judicial controversy between such 
parties; there is, therefore, no presumption from their 
character against the jurisdiction. It might be, that a 
question between the United States and a foreign state, 
arising upon a treaty, could not be a case of judicial cog- 

13 



98 

nizance; that it would necessarily be political or diplo- 
matic, and not judicial. Bui a question with a state 
could not be of that description, because a state could 
have no political or diplomatic relations. Const. Art. 1, 
Sect. 10. It was no more diplomatic than if it were the 
case of an individual complainant. The questions might 
be precisely the same. Its being the case of a state, de- 
fendant, could make no difference, for this court enter- 
tained jurisdiction in equity of controversies between 
states, as in the pending case between New Jersey 
and New York. As to the parties, there could be no 
doubt. 

2. Was there a subject matter, proper for judicial de- 
cision 1 That must depend upon the nature of the right 
which was asserted, and the nature of the wrong which 
was inflicted or meditated. As to the rights of the com- 
plainants, as they were here asserted, they might be con- 
sidered for the present purpose as founded entirely upon 
the laws of the United States; that is, upon treaties and 
upon acts of congress, which were of equal authority. 
These rights were judicially known to the court as part 
and parcel of the laws of the United States. It was 
not necessary to go out of those laws for the purpose 
of investigating them. They were not obliged now to 
explore the original grounds of right, nor to question 
the European principle of discovery. Such as they 
appeared upon the statute book the complainants were 
willing to consider them ; and they- asked nothing more 
than to have them enforced as they there appealed. 

Of these rights the Cherokces were in actual possession ; 
with the knowledge and acquiescence of all the authorities 
of the United States. There was no dispute between 
them. Their claim was only to be protected from dis- 
turhance or interference with their established rights ; 
and they claimed it against those who were subject to the 
authority of the laws of the United States and within 



99 

their jurisdiction, but did not profess to derive any sanc- 
tion for their conduct from the United States. 

These rights, it was further to be remarked, were 
such, that in a suit between the citizens of the United 
States, they would undoubtedly be within the jurisdic- 
tion of the laws of the United States. What are they? 
The treaty of July 1S17 (art. 5) continued in force all for- 
mer treaties. The treaty of February 1819, was only a 
final adjustment of the former. All the guarantees of 
former treaties are therefore in full force. 

1. The first of the rights admitted, and professed to be 
guarantied and secured to them, was the right, ivithin 
their own boundary, of self government. Their political 
power is abridged by their own concesssions, and so is 
their right of property by conditions annexed to it. But 
the right to regulate their own civil condition within their 
own limits, to make and to execute their own laws, is ex- 
clusive and absolute. It is extended expressly by treaty, 
as well as by the intercourse act, to persons going amongst 
them. This is the plain import of all the treaties, as 
well as of the intercourse act. In the treaties, means are 
employed for civilizing them, but they are proposed in 
the way of advice and assistance, and not in the way of 
authority or command. See particularly Art. 14, treaty 
of 1791 ; Art. 2, treaty of 1806; preamble of treaty of 
1817, and Art. 8 of same. 

2. The next was the right of property, modified, but 
still exclusive and absolute against all interference. The 
mode of enjoying it was left to themselves. Whatever it 
might be, it resolved itself into individual enjoyment as to 
its end and purpose. As against the United States and 
their citizens, this right was sacred and incontestible. It 
was acknowledged in every variety of way. The boun- 
daries were fixed by treaty, and what was within them 
was acknowledged to be the land of the Cherokees. This 
was the ccope of all the treaties. Treaty of Hopewell, 



100 

Art. 4. Treaty of Holston, Art. 7, &c. The United 
States would not even assume the right of passage without 
their consent, and when it was granted, it was by treaty 
in a limited way, by a particular road. Treaty of Hol- 
ston, Art. 5. Treaty of 1795, Art. 7. They stipulate 
against intrusions, abandoning intruders to the laws and 
tribunals of the Cherokees. Treaty of Hopewell, Art. 
5. Treaty of Holston, Art. 8. They stipulate also for 
protection. Treaty of 1798, Art 4. 

It was unnecessary for this purpose to go more fully 
into those treaties. They spoke one language through- 
out, and that was, that the Cherokees were entitled to 
the occupation and enjoyment of their land without in- 
trusion or interference. The same language was spo- 
ken by the intercourse act. Indeed, he might add, that 
as yet, it was not disputed by any act or declaration of 
the United States through any official organ authorized 
to do or to speak on the subject. These rights were 
absolutely unquestioned, and the obligation to protect 
them was in full force. The United States had never 
by any competent authority disclaimed it. They do 
not disclaim it now. The solemn guarantee advised by 
the senate in 1790, and given by the executive, with the 
advice of the senate, in the year 1791, is as fresh in its 
claim upon the public faith as the day when the treaty 
was signed. It is true that the stipulated protection 
is not afforded ; but the congress of the United States 
have never denied the right to claim, or the obligation to 
a (lord it. 

3. What are the wrongs they complain of? 
The violation of these rights, to the extent of their total 
destruction and extinction. The legislation of Georgia 
proposes to annihilate them, as its very end and aim ; the 
acts already done under it are in furtherance of that pur- 
pose, and those which are further menaced will be its 
consummation. The laws of Georgia profess no other ob- 



101 

ject ; they are effectually conceived for this. If those 
laws be fully executed, there will be no Cherokee boun- 
dary, no Cherokee nation, no Cherokee lands, no Cherokee 
treaties, no laws of the United States in the case. They 
will all be swept out of existence together, leaving nothing 
but the monuments in our history of the enormous injus- 
tice that has been practised towards a friendly nation. 

These laws of Georgia operate upon the individual Che- 
rokees as well as upon the nation. They are virtually 
made outlaws, neither citizens nor aliens, nor competent 
to be witnesses in courts of justice. They operate 
also upon their property, and upon the rights and pri- 
vileges declared for them by the laws of the United 
States. 

Is not this, then, a case or controversy of judicial 
cognizance? The bill sets forth a number of individual 
instances of the exercise of the unjust authority. Would 
they not, upon the complaint of individuals, be the subject 
of judicial cognizance 1 Would not the questions to be 
presented, discussed, and decided, be precisely as they now 
are? As questions of property, as personal privileges, 
or as corporate privileges, they are matters of judgment 
purely and strictly, without any admixture whatever of 
political or diplomatic considerations, and they have be- 
come a case, or subject of a suit, by the actual perpetra- 
tion of injury and the menace of its repetition. They are 
questions upon the laws of the United States, in suits 
against citizens of the United States; and if it be necessary 
still further to examine the ground of complaint, it will be 
found that it is one of every day judicial cognizance, 
namely, that the laws of Georgia are unconstitutional 
and void. 

Is not the character of the aggregate the same as that 
of the particulars of which it is composed ? Is there 
any thing in the process of aggregation to alter it ? 
The constitution of the United States gives no colour to 



102 

such a distinction. It applies the same description of 
case or controversy to bodies and to individuals. Judicial 
decisions gives it no countenance, but the contrary. Juris- 
diction is entertained of suits between states, as in the 
instance now pending. In tbe case between slates, there 
must alwavs be individual interests involved with those of 
the state. Jurisdiction is entertained of suits by corporate 
bodies. Osbourn vs. Bank of the United States, 9 Whea- 
ton, 739. 

To what forum (of those belonging to the United 
States) the resort is to be had, depends upon the parties. 
The federal jurisdiction depends upon the nature of the 
case or question. If that be such, that it might be here 
by an individual, under the twenty-fifth section of the 
judiciary act, by appeal; it may be brought here 
originally by a state. 

It might be that, in fact, the present was the only 
mode in which the protection of the United States judi- 
ciary could be obtained, or in which it could be called 
upon to vindicate the majesty of the laws and treaties. 
The nature of the Cherokee institutions and polity, as 
to the tenure of land, presented a difficulty on the one 
side. The determination of the authorities and tribu- 
nals of the state of Georgia not to permit a suit to reach 
a stage where a writ of error could be made available, 
was at present an insuperable difficulty on the other. 
If redress could not be afforded in the mode now pro- 
posed, they might all, like Tassels, suffer final and 
irreparable infliction while waiting for the time of 
hearing before this court. 

The complainants, then, come here upon the ground 
of the violation of a legal right, and that, he submitted, 
was a case or controversy. They do not present an 
abstract question. They do not present a political 
question. They do not come to demand in general 
terms the fulfilment of a treaty, nor to ask this court 



to enforce the execution of an active article. They 
do not come to claim any thing adversely to the United 
States, nor to ask this court to settle questions between 
the high contracting parties. They ask for redress 
and protection against wrong-doers in the accustomed 
legal way, and they vouch the treaties as the evidence 
of their rights. 

4. Is such a case presented by the bill as entitles the 
complainants to the specific remedy of injunction. For 
the purpose of this inquiry, in its present stage, all the 
averments of the bill are to be taken to be true. 

An injunction is the process of equity to restrain, where 
restraint is necessary, to prevent irreparable mischief; 
for which there is no adequate redress at law. Eden 
on Injunctions, 1, 209. It is granted to hold a fund, until 
a decision can be had of a claim upon it. State of Geor- 
gia vs. Brailsford, 2 Dallas, 402. 

In this court there is a decision directly applicable. 
An injunction may be issued to restrain a person who 
is an officer of a state from performing an act enjoined 
by an unconstitutional law of the state. Osburne vs. 
Bank of the United States, 9 Wheaton, 733. Mr. Ser- 
geant referred particularly to the argument of counsel, 
748, and the opinion of the court by the Chief Justice, 
838, 9. This case, in the argument and decision, was 
full to the present purpose, and was an adequate and 
sufficient authority for the injunction in the present case. 
The subject of complaint was the same — an unconstitu- 
tional law. The object was the same — to restrain its 
execution. The state of things, calling for relief, was the 
same, except that here the threatened danger was far 
greater and more urgent. Here, as there, the property, 
the franchises, rights and privileges of the complainants 
were menaced. 

Ferhaps it might be suggested that the complaint 
related to matters out of the United States, but within the 



101 

Indian nation, and therefore beyond the limits of the 
jurisdiction of the court. It was not necessary to examine 
very particularly the foundation in fact of such a sug- 
gestion. Among the acts stated, however, it would be 
remarked, was that of drawing the complainants to tri- 
bunals within the United States, to which they were not 
amenable. But, independently of this, there was a very 
satisfactory answer. A court of equity does not regard 
the situation of the subject matter in dispute, but con- 
siders only the equities arising from the parties. It has 
enjoined a party from proceeding in a foreign court. 
Eden, 101, 2, 3. Wharton vs. May, 5 Ves. 27. Upon 
the same point there is a clear authority in this court. 
In Massie vs. Watts, 6 Cranch, 148, it was decided, that 
a court of equity has jurisdiction, in personam, in cases 
involving trust, contract, or fraud, wherever the person of 
the defendant is even casually to be found within its 
jurisdiction; although it may be unable to enforce its 
decree in rem, the property in controversy being out of 
its jurisdiction. This was a case involving contract. 

He deemed it unnecessary to trouble the court further 
upon this point. 



SPEECH 

ON THE BANKRUPT BILL, DELIVERED IN THE HOUSE OF 
REPRESENTATIVES OF THE UNITED STATES, TUES- 
DAY, FEBRUARY 17, 1818. 

Mr. Sergeant remarked, that, from the course which 
had been taken by the opponents of the bill, its provisions 
seemed to be understood as having no object but the relief 
of debtors, and those of a particular class. One gentleman, 
indeed, appeared to have a glimpse of a more extended 
operation, for his objection was that the bill imposed extra- 
ordinary liabilities, and conferred peculiar privileges, upon 
the mercantile part of the community; but it did not seem 
to have occurred to him, that the imposition of extraordi- 
nary liabilities might of itself be an adequate inducement 
for granting some peculiar privileges. The truth is, that 
the bill now under consideration, and every well conceived 
bankrupt law, proposes, chiefly, the security and advantage 
of the creditor. The ultimate relief afforded to the debtor 
is only an incident, though an incident, undoubtedly, of 
great importance, whether it is regarded in its connexion 
with the public interests, with the demands of justice, or 
the duties of humanity. The question which presents itself 
to the consideration of an enlightened legislature, is simply 
this — if from motives of public policy, you deem it neces- 
sary to exercise over a certain description of citizens the 
summary power of arresting them in their career, upon in- 
dications of weakness and approaching failure ; of taking 
their property out of their hands, and distributing it among 
their creditors, for the satisfaction of their debts, what 
terms ought you to grant to those over whom you have 

14 



106 

exercised this authority? An interesting question it must 
at all times be, and at the present time it has a peculiar 
interest from circumstances to which I shall perhaps have 
occasion to advert hereafter. 

My purpose in the first place, is to state very briefly, 
why the bill is and ought to be confined in its operation to 
the persons described in the first section, that is to those 
engaged in trade. And in this I have in view to meet an 
objection that I find has had a considerable influence upon 
the minds of members. Why, it is said, why not extend 
the provisions to all classes of the community ? why confine 
them to a single class? The answer is a very plain one. 
The design of the Constitution, was to vest in the govern- 
ment of the United States such powers as were necessary 
for national purposes, and to leave to the States all other 
powers. Trade, commercial credit, and public or national 
credit, which is intimately allied to it, were deemed, and 
rightly deemed, to be national concerns of the highest im- 
portance. In the adjustment of our government, at once 
national and federal, they were intended to be confided, and 
were confided, to the care of the public authority of the na- 
tion. It is too much the fashion everywhere to indulge in 
general censure of classes or professions. When merchants- 
arc the subject of discussion, we hear of speculators, and 
even worse ; when protection is asked for manufactures^ 
we are told that manufacturers are extortioners, and there 
is often danger that the great interests which are connected 
with their occupations, may be lost sight of in the prejudice 
raised against the individuals engaged in them. But, what- 
ever may be said of the merchants, it is nevertheless cer- 
tain, that trade, trade carried on by merchants, and com- 
mercial credit, are favourite objects of the Constitution. 
It is, in fact, to a regard for trade, to the obvious necessity 
of a system that should be adequate to its protection, it» 
regulation and support, that we are indebted for the Con- 
stitution itself, and all the blessings we enjoy or promise 



107 

ourselves from that instrument. The commissioners who 
met at Annapolis in September 1786, delegated by the 
States of New-York, New- Jersey, Pennsylvania, Delaware, 
and Virginia, assembled in consequence of a resolution of 
the State of Virginia, " to take into consideration the trade 
of the United States; to examine the relative situation and 
trade of the said states, &c." Their report, grounded upon 
the suggestion, "that the power of regulating trade is of 
such comprehensive extent, and will enter so far into the 
general system of the federal government, that to give it 
efficacy, and to obviate questions and doubts concerning its 
precise nature and limits, may require a correspondent ad- 
justment of other parts of the federal system," recommend- 
ed the plan of a convention, with enlarged powers, to pre- 
pare such a system. The recommendation was adopted. 
The convention that formed the Constitution was assembled. 
This Constitution was the result — and "commerce with 
foreign nations and among the several states" was one of 
its chief concerns/ 

The power to " regulate commerce with foreign nations 
and among the several states," would have been inadequate 
to its purpose without the concession to Congress of certain 
auxiliary powers. They were granted. — Among them, and 
I advert to it as having the nearest affinity to the power 
now more immediately under consideration, was the au- 
thority to establish a national judiciary, with jurisdiction 
over controversies between foreigners and citizens, and 
over those between citizens of different states. What was 
the view of the convention in giving to the foreigner, and 
to the citizens of other states in relation to the debtor, a 
forum such as this? To secure to him, as far as practicable, 
a fair and impartial administration of justice, to place him 
above the reach of local feeling and local prejudioe, beyond 
the sphere of those influences that may, by possibility, affect 
the state tribunals, in contests between their citizens and 
others. This was the immediate, but what was the ultimate 



108 

object? To protect and encourage trade, to support and in- 
vigorate commercial credit, by tbe security offered. 

The power " to establish uniform laws on the subject of 
bankruptcies," is of the same character. For the construc- 
tion of this power, I do not think it necessary to resort to 
verbal criticism. It does not appear to me that we need in- 
quire, whether the term "bankruptcy" had a definite mean- 
ing, to which we are limited, nor whether we are bound to 
follow the model of the statutes in England, or any state 
bankrupt laws that may have existed here before the Con- 
stitution was framed. For the present purpose, the general 
spirit and scope of the Constitution furnish a sufficient 
guide. The design of that instrument was to occupy na- 
tional ground, and leave the rest to the states. Who are the 
persons then, that, in the relation of debtor, stand connect- 
ed with foreigners and with the citizens of other states ? 
Who are the persons that in the same relation stand con- 
nected with domestic and foreign trade, and with the com- 
mercial and public credit of the country ? The answer will 
be at once, they are the merchants, the traders, the dealers, 
by whatever name you may be pleased to call them, whose 
business it is to buy, and sell, and circulate what is produc- 
ed at home or imported from abroad. Other persons may 
contract the same relation, but it is occasionally and by 
accident only. These (merchants or traders I mean) do 
so habitually, constantly, and in the regular course of their 
business. Again, in what other class of citizens has the na- 
tion the same sort of interest? I wish not to be misunder- 
stood. The nation has an interest in the prosperity of all 
her citizens, and of every branch of industry. Agriculture, 
the essential basis of national strength and wealth, deserves 
to be cherished and supported. — For manufactures, every 
day becoming more and more interesting to this country, I 
trust that much will be done to afford protection and sup- 
port. I declare myself willing to go as far in measures to 
support and protect them, as may be necessary — a declara- 



109 

t ion which I am willing should be understood either literally 
or liberally, to give it the most positive meaning. But let 
it be considered for a moment what is the sort of interest 
the nation has in the trading part of the community, and 
it will immediately be seen how important is the power to 
control them. Take the whole amount of your imports, 
add to it the whole amount of your exports, and (if any one 
can estimate the value of it,) of your internal trade for con- 
sumption. The great aggregate circulates by means of the 
trader, and is in his hands. When the farmer or the planter 
carries his crop to market, he does not become the shipper, 
and enter into the mystery of invoices, and bills of lading, 
and policies of insurance : he sells it to the merchant. By 
the hands of the merchant, too, the government receives 
its revenue. With such a mass of public and national inte- 
rest concentrated in the concerns of this class of society ; 
with such a power, in the nature of their occupations, to 
influence trade, and credit, and revenue, I am satisfied that 
the controlling power of Congress was intended to reach 
them. We are on national ground, then, intended by the 
Constitution to be occupied, in making a bankrupt law for 
merchants and traders, and others immediately connected 
with trade. Can we go further? Without undertaking to 
say we cannot, under any circumstances, I am free to con- 
fess that I see no necessity for it, and there are objections 
of no inconsiderable magnitude. Beyond this limit, none 
occurs to me as assignable short of an entire comprehension 
of all descriptions of persons. To say nothing of the im- 
policy of exerting the summary and sweeping authority of 
a commission of bankruptcy over farmers, and manufac- 
turers, and mechanics, it would be a plain encroachment up- 
on the rights of the states. Was it intended that Congress 
should regulate their internal concerns? This is left to the 
states themselves. Why then should we undertake unne- 
cessarily to interfere? And we should interfere to a most 
enormous extent, if we should attempt, by any means, to 



110 

regulate or to affect the relation of debtor and creditor 
within the states, upon the comprehensive plan suggested. 
The argument is, to my mind, decisive, and it brings us 
back to the ground originally taken, where we may safely 
stand, assured that we are within the limits of constitutional 
duty — from which we cannot depart, without the risk of 
doing what is at once unnecessary and inexpedient, perhaps 
unconstitutional. The discrimination which is thus indicat- 
ed by the spirit of the Constitution, and by the theory of 
our government, is conformable also to the terms used by 
the Constitution. Bankrupt laws, as distinguished from in- 
solvent laws, have a sufficiently appropriate signification, 
determined by experience and practice. Their most uni- 
form feature, whatever other differences may have existed, 
has been, that, in their principal operation, they were usually 
confined to the commercial class ; to that class which is most 
extensively intrusted with the property of others — which 
is most engaged in hazardous adventure, and whose good 
or ill fortune, and, if you please, good or ill conduct, have 
the most extensive influence. I would not, however, be 
understood as meaning to give any positive limitation, in 
this respect, to the power. It is possible that circumstances 
may arise, which would render a more comprehensive de- 
scription necessary ; and then we should be called upon to 
say whether the Constitution permitted such a construction. 
At present this is not the case ; the broad line is sufficiently 
marked between the national ground which the national 
legislature ought to occupy, and those subjects of internal 
regulation which may be sufficiently provided for by the 
state legislatures. 

It is certainly true, that the merchant or trader may be, 
and commonly is, indebted to persons residing in the same 
state with himself; and it is equally true, that the bankrupt 
law will operate upon debts of this description, as well as 
upon debts due in other states, and beyond the limits of the 
United States. The objection, however, has very little 



Ill 

weight. If this operation were an evil, it would be only an 
incidental one, such as, in a greater or less degree, belongs 
to every human system. The work of legislation must be 
at an end, if it can never go on without the perfect assur- 
ance that it will produce pure, unmixed good — that it will 
precisely accomplish its object, without producing any con- 
sequences in themselves to be deprecated. I will not stop 
to illustrate, for every man will find the illustrations lying 
in every direction about him. But it is not an evil : it is a 
part of the object of the bankrupt law, and a part of the 
result contemplated by the Constitution in conferring the 
power. The Constitution looks to the mass of commercial 
dealing — to the character of commercial dealing — to the 
sum of the relations arising from it, and the sum of the 
effects produced by it — upon trade — upon credit — upon the 
nation, and upon society. It regards, also, the entire mass of 
commercial dealing, not the individuals engaged, as the ob- 
ject of national concern. Is any other discrimination practica- 
ble ? Suppose you should attempt to exclude creditors resid- 
ing within the same state with the debtor, one most unjust 
consequence would immediately follow. You exclude these 
creditors from a participation in a bankrupt's estate ; that 
is, you divide it among one set of creditors, to the exclusion 
of another, not less meritorious. Or, suppose you admit 
them to participate, but upon different terms, say upon the 
terms of not being barred by a certificate, this would be a 
discrimination in their favour, both unjust and impolitic, 
and tending directly to weaken and undermine the founda- 
tions of credit; it would be palpably repugnant not only to 
the policy, but to the very terms of the Constitution, which 
give us authority to make uniform laws on the subject of 
bankruptcy. 

Still less force is there in that objection which would 
confine the operation of the law to cases between merchant 
and merchant, excluding all creditors who are not traders. 
If the exclusion should be entire ; that is to say, if you 



112 

were to distribute the estate of the bankrupt only among 
creditors who are traders, giving no part to the farmer, the 
manufacturer, the mechanic, or others, it would be unjust. 
If you give them a portion of the estate, without affecting 
them by the certificate, it is unjust as well as impolitic, for 
the reason I have before stated. In either case, (and this 
remark applies to both the objections,) you lose sight of 
and defeat the very object of the power, which owes its 
existence in part to the extent and nature of the relations 
between the merchant and others. 

The question which remains for the consideration of the 
House, is, shall this power now be exercised? I do not 
mean to contend that, because we find it in the Constitution, 
therefore we are bound to keep it always in exercise. My 
honourable friend and colleague (Mr. Hopkinson,) did not 
say so, and he has been misunderstood by those who have 
endeavoured to illustrate the extravagance of the position 
by reference to the power of making war. It is a power to 
be exercised by Congress in their discretion, with this guide, 
however, to direct them, that the framers of the Constitu- 
tion thought it a power fit and proper to be exercised by 
Congress, and not to be left to the states ; they, therefore, 
supposed it not merely possible, (for a mere possibility 
would not have afforded a sufficient motive for insertion,) 
but highly probable that a state of things would exist, ren- 
dering an uniform bankrupt system not only convenient, 
but absolutely necessary. Whatever arguments, therefore, 
are urged against such a system, simply as such, (and most 
of the arguments we have heard are of that description,) 
intended and tending to show that it is at all times, and 
under all circumstances, an evil; every argument, too, 
grounded upon the supposed adequacy of state legislation 
to accomplish the design of the Constitution, is an argument 
that might, with propriety, have been addressed to those 
who framed, and to the states when deliberating upon the 
adoption of that instrument; it is, in truth, an argument 



113 

against the Constitution itself, and ought to be applied, not 
to prevent the passage of a law, but to produce an amend- 
ment. 

Can a state of things ever be supposed to exist, more 
imperiously calling upon Congress for their interposition, 
with a view to the results which the power is to be con- 
sidered as having been intended to produce? This question 
will be most satisfactorily answered, by considering, in the 
first place, for a few moments, the general provisions of 
the bill, as they relate to the interests of the creditor. 

The bill proposes, in the first section, that, upon the 
proof of certain facts, indicating unequivocally that a mer- 
chant's or trader's concerns are in a state of irretrievable 
embarrassment and disorder, and that he is rapidly ap- 
proaching to a state of insolvency, or already arrived at it, 
a creditor may cause a commission of bankruptcy to be is- 
sued against him. The effect of the proceeding is, to take 
out of his hands all the property he may have in his pos- 
session, or may be entitled to, and place it in the custody 
of persons appointed by the law for the purpose of equal 
distribution among all his creditors, without distinction, in 
proportion to the amount of their respective debts. Nothing 
can be fairer or more reasonable than this. The details of 
the bill, so far as they concern the creditors, are all directed 
to the object I have stated, to accomplish the honest sur- 
render of property by the debtor, and the equal distribution 
among his creditors. Is not something of this kind requir- 
ed? Those members who represent commercial districts, 
are prepared to answer the question from experience ; and 
those who have not had the same means of information, 
may, notwithstanding, arrive at the conviction of the neces- 
sity by the simple process of reason. 

The state insolvent laws, (with, I believe, but one ex- 
ception,) proceed only upon the application of the debtor. 
They do not operate till he himself thinks proper to peti- 
tion, and then they give him relief in such manner as they 

15 



114 

deem most advisable. Some, by general laws, commit the 
authority to judicial tribunals ; some exercise it themselves 
by direct legislation upon existing cases; some have per- 
manent regulations ; others pass occasional laws ; some few 
grant the most extended relief, discharging from the debt; 
the greater part, only the limited relief of immunity from 
imprisonment. Their views, in all these cases, are direct- 
ed, as in other matters, by state, and not by national policy, 
and so they ought to be. This policy is different in differ- 
ent states, but in all it is liable to be embarrassed by the 
very omission of Congress to provide for the case which 
by the Constitution is committed to their care, inasmuch 
as it throws upon the states, individually, the almost in- 
vincible difficulty of endeavouring to conciliate interests 
and views that can scarcely be made to harmonize. New- 
York, being highly commercial, may be very much in- 
fluenced by commercial feeling in her local legislation on 
this subject. Pennsylvania, not long ago, passed a special 
insolvent law for the city and county of Philadelphia. This 
was an effort to describe commercial cases by local limits, 
and may be plainly traced to the same fruitful source of 
embarrassment — an embarrassment that would no longer 
have an existence if Congress would exercise their authority, 
and, by withdrawing from state legislation the subject of 
commercial bankruptcy, leave the states free to pursue each 
its own appropriate policy upon other cases of insolvency 
— cases that, from their nature, are essentially dependent 
upon other and much less extensive considerations. 

One great defect, however, of the state insolvent laws, 
is the one I have mentioned. They wait until the insolvent 
asks for relief. In the mean time he is consuming, or wast- 
ing, or mismanaging the property that ought to satisfy his 
debts, and, when he comes for relief, has nothing to sur- 
render. The uncontrolled authority over his estate, too, 
occasions a resort to expedients, which, in a general view, 
ought not to be permitted — expedients that have become 



115 

almost consecrated by practice, but are not, on that account, 
the less exceptionable. The failing merchant is influenced 
in the distribution of his property, not by any general con- 
siderations of justice, but sometimes by feelings of regard 
for particular creditors, often by regard only for himself 
and his future hopes. He pays one, and leaves nothing to 
pay another. Why? Because one is a friend or neighbour, 
the other is not; one has lent him money, or endorsed his 
paper, the other has only sold him goods; one importunes 
him, the other has not the opportunity ; making thus cer- 
tain arbitrary distinctions, natural enough, but not defensi- 
ble upon any just general principles. Sometimes, and not 
seldom, his distribution has reference only to himself. Is 
he most intimately connected with domestic creditors ? He 
may secure their good will and future aid by giving them 
a preference to his foreign creditors. Is he most nearly con- 
nected with foreign creditors ? He preserves their confi- 
dence, and lays a ground to hope for their future assistance, 
by giving the preference to them ; and among creditors of 
the same kind he may adopt a similar distinction. The ob- 
ject of the bill is to prevent all such doings, and to bring 
back the distribution to the only fair rule, the rule of im- 
partial equality. I do not pretend to pursue the mischiefs 
that exist in all their details — suffering a failing debtor to 
make his own assignees, permitting him to extort terms of 
composition from his creditors, and the like. I refer to 
these things briefly, to show, that circumstances call for 
the incorporation of a bankrupt law into the code of the 
United States, for the protection of the creditor, and the 
preservation of commercial integrity and commercial 
credit. 

It would be a sufficient answer to the argument which 
supposes that the states may do all that is necessary, to say, 
that the Constitution does not permit us to think so, or why 
did it give the power to Congress ? The states cannot make 
uniform laws on the subject, nor laws that will operate be- 



116 

yond their own territory, much less that will have any fo- 
reign operation. The states, in their local legislation, must 
be chiefly governed by local views — this is the theory of 
the Constitution — and by the clause in question, they have, 
themselves, not only conceded the principle, but they have 
also conceded the fact, that the power in question is one of 
national, and not of local concern. How can this argument 
be urged with any thing like even a plausible appearance, 
by those who, in another instance, endeavour to deduce the 
principle, not from the express words of the Constitution, 
but from the mere proof of the fact? You have upon your 
table a most important report upon the subject of internal 
improvement. Is there any express authority given to Con- 
gress by the Constitution, to legislate on this subject? The 
answer is plain ; there is not. Whence is the authority de- 
rived? From the fact merely that national improvements, 
by roads and inland navigation, may be necessary for the 
common defence and general welfare. And cannot this be 
done by the states? The answer again is, no. The states, 
individually, are not competent to the care of the national 
concerns. They may and do make roads for themselves, 
and it may happen that these will be so made in reference 
to each other, as to produce, by their combination, what is 
desired — national thoroughfares, for national convenience 
and national defence. But it may happen otherwise. I warn 
those who argue thus — who derive the power itself from 
the necessity and convenience of its exercise — against send- 
ing back to the states a power, which the states themselves, 
upon similar reasoning, have expressly granted to Congress. 
The interest which the United States, as a creditor, have 
in this question, ought not to be overlooked. One of the 
communications made by the Secretary of the Treasury, 
during the present session, (I cannot lay my hand upon it) 
states, that the preference intended to be secured to the 
United States, is defeated by partial assignments and dis- 
positions of property made by the public debtors. The 



117 

steady and regular collection of the public revenue, so im- 
portant to the public service, is, at all times, worthy of the 
attention of Congress ; and it must, therefore, be consider- 
ed as a powerful recommendation of a bankrupt law, that 
it would effectually remedy the evil complained of. The 
wisdom of the legislature may be able, perhaps, to devise 
other remedies ; I know of none, (and I do not say it with- 
out some reflection,) that will be effectual, and not be liable 
to very great objections. 

Upon the remaining part of the subject, that which re- 
lates to the condition of the debtor, I shall, at present, say 
but a very few words, not only because it has been fully 
and distinctly put before the committee by my honourable 
friend and colleague, (Mr. Hopkinson,) but because it will 
be more proper to consider it when we arrive at that part 
of the bill which contains the provisions for his relief. The 
general design is to discharge him altogether, provided 
two-thirds of his creditors shall agree. The commissioners 
are bound to sign his certificate, if he has been guilty of no 
fraud ; but that will not discharge him. Two-thirds of his 
creditors must concur, and as they may either give or with- 
hold their assent, at their discretion, without assigning any 
reason, they will, of course, be determined in their deci- 
sion, by a general and comprehensive view of the whole 
conduct of the debtor. Has he been unfortunate? They 
will agree to his discharge. Has he been unjust, has he 
been careless, extravagant? They may, at their pleasure, 
refuse it. Is there any thing unreasonable in this? If, by a 
summary process, you take all from the debtor, if he has 
fairly surrendered every thing to his creditors, satisfied a 
large majority of them that he has been the victim of mis- 
fortune, not of misconduct, ought he to be held in subjec- 
tion to the merciless resentments, or the merciless avarice 
of a few, and be condemned, at their pleasure, to idleness 
and despair? And for what purpose? Society is deprived 
of the benefits of his exertions ; he is himself deprived of 



118 

the use of those faculties which have been given to him — 
and for what? Does the creditor gain by it? Has he a 
chance of obtaining more? I have the authority of expe- 
rience for saying, that the chance is not worth estimating. 
Look at the operation of those laws, which grant only a 
partial discharge. Is a creditor in a better condition for the 
hold he has upon the future earnings of the debtor ? One 
of two consequences inevitably follows; the debtor either 
sinks into a state of hopeless and helpless inaction, or con- 
ceals the fruits of his industry by various contrivances that 
are hurtful to his and to the public morals. Besides, we 
must never forget, that it is for misfortune that this provi- 
sion is to be made ; for misfortune, which no prudence can 
avert or prevent, but which is inseparably incident to the 
pursuits of those who are proposed to be comprehended in 
this law. But I forbear, at present, to press this part of the 
case. 

I would beg leave to remark, however, that I confine 
myself to the exemption of the earnings of his industry. 
I have no objection to give to his creditors whatever he 
may afterwards acquire by gift, devise, descent, or any 
other means, in short, but his own exertions. Of these he 
should have the full benefit, not only for his own sake, but 
for the sake of society. 

It was not my intention to notice the objections to par- 
ticular parts of the bill, nor will I at this time notice them. 
There are two or three objections of a more general cha- 
racter, upon which I will ask the indulgence of the com- 
mittee to say a very few words. 

A system, it is said, must be a bad one, and contain in 
itself very strong temptations to fraud, which requires such 
bloody penalties as are to be found in the English statutes. 
The whole penal code of England is deeply stained with 
blood. When Blackstone composed his Commentaries, he 
mentioned, with regret, that of the offences which a man 
may commit, no less than one hundred and forty were 



119 

capital felonies, punishable with death. How many may 
have since been added by statute, to the catalogue, I do 
not know. The bankrupt laws of England are in the spirit 
of the rest of this code, and their penalties are no better 
evidence of the temptations offered by those laws, than are 
the penalties in the laws for securing life and property, 
that the security of life and property offers a great tempta- 
tion to the perpetration of murder and robbery. You may 
trace it, if you please, to the state of society ; you may 
trace it to the error of the legislature, or to a general want 
of humanity in their institutions, to extreme prodigality in 
the punishment of death, but not to the mere existence of 
laws for securing life and property. 

Again ; it is said, that a bankrupt law must be a source 
of endless litigation, and the evidence of it is a bill that 
passed some time ago for completing the execution of com- 
missions under the former law. To make this argument 
available, it would be necessary to know how many cases 
were finished, and how many remain incomplete. It might 
be useful, then, to compare the proportion of each, with 
the cases of each kind under the state insolvent laws. — 
The comparison would be decidedly in favour of the bank- 
rupt law, unless, indeed, the cases under the insolvent law 
are considered as terminating with the discharge of the 
debtor, for, in truth, very little more ever comes of them. 
It may be well, however, to remind the honourable mem- 
ber who thinks the want of a court of chancery of so great 
importance, that a system without it must be a wretched 
system ; it may be well to remind him that one of the chief 
objections to a court of chancery, so commonly urged, is, 
that its proceedings are interminable. But, I am sensible 
that I have already trespassed too long on the attention of 
the House. 



SPEECH 



ON THE BANK OF THE UNITED STATES, DELIVERED IN 
THE HOUSE OF REPRESENTATIVES, FEBRUARY 22, 1819. 

[On the 30th November 1818, on motion of Mr. Spencer, of New-York, a resolution 
instituting a committee of inquiry into the affairs of the Hank of the United States, 
passed the House of Representatives. The committee, consisting of Mr. Spencer, Mr. 
Low ndes, Mr. M'Lane, Mr. Burwell, and Mr. Tyler, reported on the 16th January 1819. 
A majority of the committee, Messrs. Spencer, Burwell, and Tyler, were of opinion that 
the charter of the Bank had been violated in the following instances: 

1. In purchasing two millions of public debt, in order to substitute them for two other 
millions of similar debt, which it had contracted to sell, or had sold in England, and 
which the Secretary of the Treasury claimed the right of redeeming. 

2. In not requiring the fulfilment of the engagement made by the stockholders, on sub- 
scribing, to pay the second and third instalments on the stock in coin or funded debt. 

3. In paying dividends to stockholders who bad not completed their instalments. 

4. By the judges of the first and second elections allowing many persons to give more 
than thirty votes each; under the pretence of their l>eing attorneys for others in whose 
names shares then stood ; when those judges, the directors, and officers of the Bank, knew 
that these slian s belonged to the persons offering to vote upon them as attorneys. 

On the 19th January, Mr. Trimble, of Kentucky, offered the following resolution. Re- 
solved, That the Attorney General of the United States, in conjunction with the District 
Attorney of Pennsylvania, shall immediately cause a scire faiins to be issued, according 
in tin : ,il Section of the Act "to incorporate the subscribers to the Bank of the United 
Stat 9," calling on the corporation created by the said act to show cause wherefore the 
charter thereby granted shall not be declared forfeited, &c. 

On the 31st January, Mr. Spencer offered a resolution directing the Secretary of the 
Treasury to withdraw the public deposites from the Bank, and the Attorney General to 
cause a scire facias to be sued out, with the view to try the question of forfeiture, unless 
the Bank should assent to a series of propositions, which, when assented to, were to be 
made, by Act of Congress, part of the charter of the Bank. 

On the oth February, Mr. Johnson, of Virginia, submitted a resolution instructing the 
committee on the Judiciary to report a bill repealing the charter of the Bank. 

It was during the discussion of these resolutions that this speech was delivered. The 
principal other speakers were Messrs. Spencer, Pindall, Barbour, and Tyler, against the 
Bank, and Messrs. Lowndes, M'Lane, and Storrs, in defence of it.— The resolutions were 
rejected.] 

Mr. Chairman : I must beg the permission of the com- 
mittee, to offer to them some observations upon the several 
propositions that are now submitted for their consideration 
and decision. 



121 

The inquiry in which we are engaged, is attended with 
some intrinsic difficulties, of no inconsiderable magnitude, 
and calculated very much to embarrass our deliberations, 
as they must have been to embarrass the deliberations of 
the select committee, to whom the examination of this sub- 
ject was more particularly confided. In the first place, it is 
retrospective, and I admit it is necessarily so. Wc are call- 
ed upon to take a review of the management and conduct 
of the bank, during all the period of its existence, and we 
expect to find that the best has been done in every instance, 
which, with the full light derived from a knowledge of all 
that has since happened, appears to us to have been possi- 
ble. In this manner it is, that battles are fought over again 
in discussion ; and, whether they have been lost or whether 
they have been won, it seldom happens that those who thus 
sit in judgment upon them, cannot detect some errors that 
have been committed — point out advantages that have been 
lost — and opportunities that have been suffered to pass un- 
improved. The just rule of judgment in such cases, if, in- 
deed, its application were practicable, would be to place 
ourselves in the situation of those, upon whose conduct we 
are called to pass, in the midst of the difficulties by which 
they were surrounded, and with no better view of the fu- 
ture than what their own judgment could afford them. 

It is in the nature, too, of this inquiry, conducted as it 
has been, to group and connect together all the exception- 
able acts that have been done by those to whom the ma- 
nagement of the institution has been confided : while, to 
use a bank phrase, it gives no credit for those things which 
were right, and even entitled to some commendation. I 
wish, sir, to be distinctly understood. I am not using the 
language either of complaint or censure. I only say, that 
as the inquiry, from its nature, was in a great measure con- 
fined to exceptionable acts, it must necessarily present them 
in a body, without relief from their association with the 
mass of good deeds with which, in their order, they stood 

16 



122 

connected. This is a sort of judgment which none of u;> 
would be willing to submit to, or could expect to endure. 
Let the life of any man, the most honest and honourable? 
be exposed to the same kind of examination. Begin with 
his infancy, (to use the language of the gentleman from 
Virginia) and, following him through the different periods 
of his progress, put together, as constituting his history, 
whatever, from the severest scrutiny, you can find, that has 
deserved reproach or censure. What a dark exhibition 
would it be ! 

Besides, sir, what is at last the test we apply ? We set 
opinion against opinion, upon a subject of a very compre- 
hensive, and of a very complicated nature, involving much 
detail, and every detail involving more or less speculative 
inquiry. 

There are extrinsic difficulties, of no less magnitude. It 
cannot be denied that there has been a vast deal of preju- 
dice in the public mind against this institution, which, what- 
ever may be our resolutions to the contrary, affects us in- 
sensibly, and, when we neither know nor suspect it. The 
sources of this prejudice are sufficiently apparent. 

The state institutions have many of them been induced 
to regard the national bank as an enemy, and the spirit of 
hostility which they have felt, has had a most powerful in- 
fluence throughout the community, with which they are so 
extensively and intimately connected. — It is in the ordina- 
ry course, too, of the operations of the bank, to give fre- 
quent offence to individuals. Every man who is refused a 
discount, thinks himself aggrieved, and indulges a feeling 
of resentment, not at all mitigated by any consideration of 
the circumstances that may have rendered it prudent, or 
even necessary, to reject his application. The same remark 
might be made, with equal truth, of every sort of accom- 
modation which the bank is supposed to have the capacity 
to afford, but which events, beyond its power to control, 
frequently oblige it to withhold. When the directors, not 



123 

very long ago, exercising a right that no one denies to have 
belonged to them, and exercising it under the compulsion 
of circumstances, so imperious, that every one now con- 
fesses they could not have refrained without a plain viola- 
tion of their duty — when, I say, they determined that 
branch notes should thenceforth be paid only where, upon 
their face, they were made payable, there was an almost 
universal clamor. — Sir, there is still another source of pre- 
judice. The bank has had the day of its beginning. It is 
now in the day of its humiliation. But, it has had the day 
of its prosperity, too ; when success, even beyond the ex- 
pectations of its most sanguine friends, seemed to crown its 
operations. In that day — I appeal to many who are within 
hearing of what I state, and are able to confirm its truth, 
as a mere matter of fact — I appeal to every one acquainted 
with our nature, to say whether it is not what would natu- 
rally happen — those who had themselves refused to sub- 
scribe, and discouraged the subscription of others — those 
who had thus neglected to avail themselves of what then 
appeared to have been the golden opportunity — suffered all 
the mortification of seeing their predictions continually fal- 
sified, and could scarcely avoid the influence of a certain 
deeply implanted kindred feeling, which is never more 
sharply exerted than when we see others profit by what we 
have permitted to escape from ourselves. They did not 
avoid it. 

There are, besides, many, who think that a national 
bank, however organized, is impolitic and unwise : And 
there are some who think it not within the constitutional 
power of congress to establish a bank. 

Under the combined operation of such a mass of causes, 
the committee had no doubt a difficult task to perform, 
even if they had taken much more time for its performance 
than seems to have been allotted. If they have fallen into 
errors, it is not at all surprising, but it ought to secure from 
them some indulgence for error in others. It will at least 



124 

entitle us to differ from them in opinion, and freely and 
fully to canvass the grounds of the report. 

Before, however, I proceed to examine the report, I beg 
leave to call the attention of the committee to the authori- 
ty under which we have been acting, as it is to be found in 
the law for incorporating the subscribers to the bank. The 
provisions of the charter, designed to secure the faithful 
administration of the bank, contain in them a distribution 
of powers, just in itself, and perfectly well adapted to at- 
tain the object. The power given to this house, (section 
23) is confined to a single point of inquiry, namely, whe- 
ther or not the charter has been violated ; in order that we 
may be enabled to judge whether or not it is expedient to 
institute legal proceedings for its repeal. The examination 
we are authorized to make, is subordinate to this object ; 
and, to my mind, it is quite clear that we have no right to 
pursue it further. The care of the remaining interests of 
the government in the institution, is confided to the Exe- 
cutive. The President appoints the government directors. 
The Secretary of the Treasury has an almost unlimited 
power of examining the proceedings of the bank. Weekly 
statements are to be made to him, (sec. 11, art. 15) and he 
has the right to inspect every thing except the accounts of 
individuals. The purpose is manifest. It is, in the first 
place, to enable him to judge of the conduct of the directors 
appointed by the government. It is, in the next place, to 
enable him to decide whether the public interest in the 
bank, consisting of the stock belonging to the government, 
and the deposites of public money, is faithfully guarded. 
The necessary sanction for enforcing the exercise of this 
power is also confided to the Executive. The President 
has authority to appoint, and to him is given the authority 
to remove, the directors on the part of the government 
(sec. 8.) A much more important sanction is the power 
given to the Secretary of the Treasury, by section 16, to 
withdraw the public deposites, laying before Congress his 



125 

reasons for so doing. The interests of the stockholders, 
which form the remaining branch of this great national con- 
cern, were intended to be left to the care of the stockhold- 
ers themselves, as their best and safest guardians — their na- 
tural guardians ; and it is the right of the stockholders to 
delegate the authority to such directors as they may think 
proper. This right is enforced and secured by the power 
of election. Their servants are accountable to them, pre- 
cisely as we are to our constituents. If, upon a review of 
our conduct here, they are not satisfied with our efforts to 
serve them, they elect us no more, but devolve the honour- 
able trust of representing them in the councils of the na- 
tion, upon others, whom they think more worthy of their 
confidence. 

These provisions, thus arranged and distributed, are of 
sufficient efficacy for all the purposes that were designed to 
be accomplished. Thus arranged and distributed, they are 
in harmony with each other, and while every interest is 
guarded by its appropriate sanction, they all co-operate to 
secure the common result — a faithful administration of the 
bank. 

If this be a correct exposition of the terms of the char- 
ter, our inquiry ought properly only to be, (what alone it 
can be effectually,) whether the charter has been violated. 
Any other course will inevitably lead us into difficulty. If 
we undertake to examine the general administration of the 
affairs of the bank, or to investigate the conduct of particu- 
lar directors, we are involved at once in the danger of an 
interference with the Executive. To that department it 
belongs to decide whether the public duty has been per- 
formed. The officer at the head of the treasury must al- 
ways be well qualified to decide. None but a citizen of 
distinguished talents will be placed in that high and respon- 
sible station, and, when there, his official occupations, the 
habitual tenor of his studies and reflections, his daily ac- 
quaintance with the management of the bank in all its re- 



126 

lations to the fiscal concerns of the nation, as well as his 
repeated inspection of the statements exhibited, will enable 
him, better than any other person, to judge how far its con- 
cerns are faithfully administered towards the public. Are 
we not in danger, too, of involving ourselves in collision 
with the judiciary ? We are here entertaining a mixed in- 
quiry, partly of expediency, and partly of charter-right, 
mingled in such a way, that, in deciding whether the char- 
ter has been violated, we make no distinction between 
errors, or, if you please, misconduct, in the management, 
and such offences of the corporation as would work a for- 
feiture of the charter. Indeed, the distinction, obvious as 
it is, seems scarcely to have been noticed, either in the re- 
port of the committee, or in the debate that has taken place. 
The great stress of objection has rested, not so much upon 
the specific violations of charter, alleged to have been com- 
mitted, as upon the more comprehensive ground of mis- 
management in the exercise of indisputable charter-rights. 
Suppose, then, that, under the impression of considerations 
like these, you send this corporation to the judiciary, there 
to receive its trial — you may send it there with all the 
weight of prejudice arising from a vote of Congress — you 
may, and you will, in some degree, pre-occupy the public 
mind, always deeply affected by the judgments of their re- 
presentatives, and you may, and probably will, more or 
less impair the chance of a fair and impartial trial. But, 
when this trial shall come — when the corporation shall ap- 
pear at the bar of a judicial tribunal — there will be an end 
to every question except the naked question of forfeiture. 
There will be an end to every consideration that is foreign 
to that precise inquiry, and then the consequence will be, 
that, following a different rule of judgment, the judicial 
tribunal will probably arrive at a different result. You are 
thus in direct collision. Different departments of the go- 
vernment are placed in a state of hostility towards each 
other, the public mind is irritated, and that harmony which 



127 

we all know to be of so much importance, in the structure 
of our government, is uselessly endangered. 

Sir, we interfere, to a most alarming extent, with the 
just power of the stockholders. They are the exclusive 
judges of whom they will have for directors. They are the 
best judges. That sure instinct, "that keen, steady, and, 
as it were, magnetic sense of his own interest," which 
every man feels and obeys, in his own concerns, is the best 
security to be relied upon for a careful and prudent selec- 
tion. It is the right of the stockholders, by the charter, 
and it is almost the only right they have reserved. To the 
government they have conceded much ; for themselves they 
have retained only the power in question, to be exercised 
under such modifications and restrictions as Congress 
thought fit to prescribe. Upon the faith of an undisturbed 
and free enjoyment of this republican right, of choosing 
their own representatives, they have embarked their pro- 
perty in the institution ; and would you, can you, without 
doing unjust violence to the compact you have made with 
them, impair or disturb the exercise of the power that be- 
longs to them, of judging for themselves whom they will 
have for directors? Sir, I will put to you what may at this 
moment, perhaps, be deemed the strongest case. Suppose 
they choose to elect a broker, or a speculator — can you say 
they shall not? Have you the power to tell them what shall 
be the occupation, what the character of the men whom 
they are to employ? You may think their selection unwise 
or imprudent, but they will answer you that they know 
their own interests, and are able to take care of them. That 
in the very instances you object to, though the individuals 
may be obnoxious to the imputation of being speculators 
or brokers, and you, on that general ground, may think 
them exceptionable, yet they, the stockholders, have the 
means of knowing their individual characters from various 
sources, inaccessible to you, and feel the fullest confidence 
in their intelligence, and fidelity to the institution. I do 



128 

not now touch the question of elections ; it belongs to a 
different part of the inquiry. 

I will make but one observation more upon this branch 
of the subject. It is essential to the interests of the stock- 
holders, and it is no more than just to the directors, that 
the latter should be free, while they are performing the 
duties that are assigned to them ; that they should be free, 
not only from all restraints except those to which the law 
subjects them, but that they should be free from the appre- 
hension of an unlimited and undefined accountability. Many 
things are exclusively confided to them, and must be so 
confided. Their own judgment, fairly applied — their own 
discretion — is what must guide them. Who will under- 
take an office like this — whom can we rely upon to execute 
it with fidelity — if he is to act under the terror of an in- 
vestigation, which may put the worst construction upon 
well meant efforts, which may even expose his best acts to 
censure, and which, governed by no known rule in its 
course, and limited by no measure in its result, is calculated 
to confound all distinction between the officer and the indi- 
vidual, between error and misconduct, and by a hasty sen- 
tence to inflict the keenest punishment that an honourable 
man can endure? And this, too, upon what a member of 
the select committee has termed, and properly termed, an 
ex parte inquiry, where the accused has not the opportu- 
nity either of explanation or defence, and where the first 
notice he receives is in the heavy condemnation going forth 
against him under the respected authority of a committee 
of this honourable body. 

Sir, other objections will readily present themselves to 
such an inquiry. We have no better rule or principle to 
direct us, than one man would have in judging whether 
another managed his estate to the greatest advantage. If 
the inquiry were simply whether the charter had been vio- 
lated, we should have a comparatively easy duty. There 
might, and from what has occurred, I think it probable 



129 

there would be difference of opinion. Still, we should 
differ only about the application of established rules, and 
should be relieved from the most unpleasant part of the pre- 
sent inquiry. 

But I know well that every public body, however con- 
stituted, listens with reluctance and with some displeasure, 
to any argument or suggestion that tends to bring in ques- 
tion its own power. I do not mean — for it is no longer 
material — to question the power of this house, in its imme- 
diate application to the business in hand. It is too late. 
Still less do I mean to avoid the full examination of all the 
grounds of complaint and censure which are displayed in 
the report of the committee. But, I have thought it right, 
to submit, with candour and freedom, such observations as 
occurred to me, upon the general nature of the authority 
possessed by this house, chiefly with a view to expose the 
mischiefs that might result from transcending it. Every 
member will allow to them such weight as he thinks they 
deserve, and no more. 

I will now proceed to consider the subject, under the 
two aspects in which it is presented by the committee. 

I. As regards the general management of the institution. 

II. As regards the alleged violations of the charter. 

1. We all of us remember distinctly the state of things 
that existed when the law passed for incorporating the sub- 
scribers to the Bank of the United States. We had a cur- 
rency, or rather, to speak more accurately, we had curren- 
cies, local in their circulation, and variously depreciated in 
different parts of the Union ; in some quarters of the coun- 
try as much as 20 per cent. We had no general currency ; 
none that would circulate freely everywhere. The evil 
effects were already very manifest, and threatened to in- 
crease. To say nothing of the obstructions and difficulties 
which were thrown in the way of domestic commerce and 
exchange, nor of the continual irritation that was occasioned 
by the changes in value which took place at every step by 

17 



130 

what was called money, in its progress, either with travel- 
lers or traders, through different parts of the Union — to 
say nothing of the effect upon the credit of the country — 
but passing these by, as evils familiarly known and felt ? 
there still remained one great source of grievance and pub- 
lic mischief, which it became peculiarly the duty of the 
government of the United States to endeavour to remove. 
The revenue of the government was received in the paper 
of the state banks ; its debts were paid in the same paper. 
What was the consequence? Its funds were not transfera- 
ble from place to place, according to its wants ; but confined 
in their use to the local limits which bounded the circula- 
tion of the paper in which they happened to be paid. Again 
— There was nothing like uniformity in the payments made 
to the government. A merchant in Boston, owing precisely 
the same nominal amount, paid twenty per cent, more than 
a merchant in Baltimore. There was the same inequality 
in the disbursement, as in the receipt of the revenue. The 
public creditor, who had the good fortune to receive his 
money at Boston, received twenty per cent, more than the 
creditor who was obliged to receive it at Baltimore or 
Washington. In addition to all the inevitable evils belong- 
ing to such a state of things, (sufficient surely, if allowed 
to continue, to have endangered the well being of the Union) 
there was one, perhaps, also, inseparably incident, which 
began to manifest itself. I allude, sir, to the power it gave 
to those who were intrusted with the collection and dis- 
bursement of the public moneys. They had the opportunity 
of benefiting themselves, and of favouring their friends, at 
the expense of the treasury, and at the expense of the pub- 
lic creditor. The very possibility of such an abuse was a 
sufficient ground of suspicion. At the period we are speak- 
ing of, an officer of the government found it necessary to 
ask of this house an investigation of his conduct, in order 
that he might vindicate himself from certain injurious ru- 
mours circulated against him, upon no better foundation. 



131 

than the one I have mentioned. The investigation took 
place; the result was satisfactory ; and I refer to it only to 
bring into view one of the many kinds of mischief growing 
out of the disordered condition of the currency. Whether 
the state institutions would of themselves have corrected 
the evil, I do not think it necessary to inquire. The go- 
vernment of the United States had no direct controlling 
power over them ; and, if they had so far sacrificed their 
own interests, in deference to the public good, as to restrict 
their business, and, of course, their profits, it must have 
been from a voluntary submission to motives of a higher 
character than ordinarily govern the conduct of individuals 
or bodies. But this I will say, that if they were to be 
brought back by any thing deserving the name of coercion, 
it could not have been gentler than that which has been 
employed by the Bank of the United States. Sir, when 
this subject was before Congress at the time of passing the 
act of incorporation, it was thought by many that the de- 
struction of the state institutions would rapidly follow the 
establishment of the National Bank. I confess myself to 
have been one of those who were influenced by this appre- 
hension. I thought the new institution would press heavily 
upon the old, and through them would press severely upon 
the community. I did not then see how the great public 
views were to be realized, without departing from that 
course of lenity towards the state banks which the interests 
of the community seemed most imperiously to require. 

The objects to be attained were thus immense : the inter- 
ests to be conciliated were of the highest importance, and 
at the same time apparently irreconcilable. The task was 
a fearful one ; and the manner in which it has been executed, 
when it comes to be fairly developed, will seem little short 
of marvellous. If proof were necessary of what was gene- 
rally thought at the time, to be the burden the bank had 
assumed, and of its capacity to bear that burden, we might 
refer to the history of the subscription at the opening of the 



132 

books. Great doubts were entertained whether it would 
be filled. In fact, it was not filled during the twenty clays 
prescribed by the law. There remained unsubscribed above 
three millions of dollars, nearly the whole of which was 
taken by one individual in Philadelphia. 

1 will now proceed to show what the bank has done, con- 
sidering, first in order, the national objects it was designed 
to accomplish. 

Among these, the most interesting, and in every point 
of view the most important, the one which chiefly induced 
the passage of the law — was the introduction of an uniform 
currency, in sufficient quantity to answer the purposes of 
circulation, so far, at least, as to enable the government to 
collect and disburse its revenue. I mean a currency as 
nearly uniform as the nature of things will admit. It can- 
not be supposed to be within the power of any government, 
or of any bank, to make a dollar at New-Orleans worth as 
much to a merchant in Boston, as a dollar in Boston ; un- 
less, indeed, he has employment for his dollar at New-Or- 
leans, in which case it may be worth more or less to him, 
according to circumstances. We might as well pretend to 
make a bag of cotton worth as much upon the plantation 
where it is produced, as in the warehouse at New- York, or 
in the manufactory at Philadelphia. But this part of the 
subject has already been fully and ably handled by the gen- 
tleman from South Carolina, (Mr. Lowndes,) who has shown 
conclusively that the currency afforded by the Bank of the 
United States, approaches nearer to uniformity throughout 
the whole extent of this great country, than has been at- 
tained by nations possessing at least equal advantages, and 
operating within much narrower limits. 

Neither was it understood or expected that the Bank 
would be able to place, and to keep in circulation, every- 
where, as much as in each particular quarter of the Union 
might be wished or wanted. This is as impracticable in re- 
gard to states and districts of country, as it is with respect to 



133 

individuals. A parent may give to a child a fortune adequate 
to his support, and suited to his circumstances, but he can- 
not prevent him from wasting or parting with it, unless he 
imposes restrictions upon its use. The very phrase, "a 
uniform currency," implies a currency that will pass every- 
where : that will flow everywhere, without any obstruc- 
tion, but what arises from the expense of conveyance ; of 
equal value everywhere, and for that very reason in un- 
equal quantities. This is the precise distinction between 
the paper of the Bank of the United States, and the paper 
of the state banks; which, having no currency beyond cer- 
tain local limits, remains within them in greater abundance 
than is necessary. It is the same distinction which exists 
between either kind of paper, when not redeemable, and 
gold and silver. We may illustrate it more clearly by an 
instance : A merchant in the state of Ohio makes a sale in 
Ohio, in order that he may be able to buy in Baltimore, or 
he sells in Baltimore that he may buy in New- York. He 
wishes, in either case, to receive what will pay for his pur- 
chase in Baltimore or New-York, and he carries from the 
place of sale to the place of purchase the amount he has re- 
ceived. It has happened to most of us to have some expe- 
rience of the nature of this distinction. Formerly, there 
was great complaint by travellers in some parts of New- 
England, that the money, or rather the paper, they received 
in one town, would not pass in another. There, I believe, 
the grievance has ceased. But in other parts of the country 
we experience it every day ; being obliged continually to 
inquire whether the paper put into our hands in one place 
will be taken in payment in another, and feeling instantly 
the inconvenience, if, by mistake, we carry it beyond the 
limited bounds of its circulation. 

Where the currency has the quality I have mentioned, 
that is, uniform or nearly uniform value, the quantity that 
will remain at any given place depends upon the course of 
trade. The quality depends upon its solidity. The memo- 



134 

rial to the Ohio Legislature, or the report of a committee 
of that body, (I do not know which, for I was not in the 
house when it was quoted by the gentleman from South 
Carolina,) complains, in substance, that such a currency 
was furnished to them. That is the amount of the com- 
plaint, for they say they were tempted to employ it in 
purchasing from the cities to the eastward beyond what 
they ought to have purchased. A very singular complaint, 
indeed, which charges upon others the consequences of 
their own imprudence ! The complaint should be, that they 
did not keep what was given to them, or at least a portion 
of it, and use it, as they might have done, in the payment 
of their dues to the government. There is no doubt, how- 
ever, that they have approached, if they have not reached, 
the true cause of their present embarrassments. This cur- 
rency would not have wandered away, and left them desti- 
tute of the means of paying their debts, if their local circu- 
lation had not been overcharged with state bank paper, de- 
preciated from its abundance — too easily obtained — supply- 
ing the purposes of local exchange, and failing when it was 
wanted for the more extensive exchange, to which the 
United States bank paper, from its uniform value, was ex- 
actly adapted. The paper and credits afforded by the Bank 
of the United States were thus banished by the local paper ; 
they were sent off to perform the distant service of buying 
in the cities at the eastward, and the people of Ohio kept 
nothing to pay their debts but the paper of the state banks. 
This was their own fault, imputable to themselves alone. 
Time, economy, and the industry of the state, employed 
in producing what will buy money, or, in other words, 
what may be exchanged with those parts of the Union 
where the money has gone, will bring all right. 

One of the charges made by the committee against the 
management of the Bank of the United States, (and which 
this is the most fit place to notice,) is on account of the sup- 
posed excessiveness of its loans in those states and cities 



135 

against which there was a balance of trade — those which, 
to simplify the idea, were debtors — particularly in Ken- 
tucky, Ohio — in Baltimore and Philadelphia. The argument 
they employ to sustain this charge, namely, that injustice 
was done to the states and cities which had the balance in 
their favour, or were creditors, has already been'amply and 
conclusively refuted. It has been shown — indeed it appears 
from the statement of the report itself — that these loans 
were in the highest degree beneficial to the creditor states 
and cities, the money obtained by the borrowers going di- 
rectly thither, and enabling them to obtain specie from the 
branches, to be employed in the manner most advantageous 
to themselves, either by their banks or by individuals. 
" The effect of these draughts upon the northern offices, 
was, to compel the constant remittance of specie there, &c." 
(Report, p. 4.) How, then, it can be said "that those 
places were made tributary to Baltimore," I am altogether 
at a loss to understand. 

But, considering the diffusion of an uniform currency 
throughout the United States, in sufficient quantities for 
public purposes, to have been, (as it is conceded to have 
been,) an important public object, it will be easy to show 
that the imputed error is far from being censurable. To 
put in circulation such an uniform currency as has been 
described, in the manner most advantageous to the Union, 
it was necessary , when the bank was organized, to give a 
preference to those states against which there existed an 
unfavourable balance. It would flow from them, in pay- 
ment of their debts, (retaining, if they were prudent, what 
was required for local purposes,) where it ought to go, that 
is, into the creditor states, and thus the creditor states would 
also be supplied. But, what was thrown by the bank into 
the creditor states, would never find its way to the debtor 
states, unless it were in the shape of loans by them, which 
was not to be expected. If an individual, having a sum of 
money to lend, were disposed to lend it to one of two per- 



136 

sons, each of whom he was equally inclined to serve, and 
in both of whom he hud confidence as to their ultimate 
ability to repay, and it so happened that one of them was 
indebted to the other, would he be most likely to benefit 
both by lending it to the debtor, or by lending it to the 
creditor? The answer is obvious: if lent to the debtor, he 
would be enabled to apply it towards the payment of his 
debt, retaining what might be necessary for more urgent 
wants. The creditor would receive his money. Thus both 
would derive some advantage. If lent to the creditor, none 
of it would find its way to the debtor. A different course 
would, perhaps, have been more for the interest of the in- 
stitution, as it is always better to lend to the rich than to 
the poor; I mean better for the lender. But, if the object 
was to distribute an uniform currency throughout the United 
Stales, there was no error. That such a currency has been 
introduced, in sufficient quantities to answer all the pur- 
poses of the government, cannot be controverted. It is 
undeniably proved by the fact, that the receipts and pay- 
ments of the Treasury are now made in a currency of uni- 
form value. Neither can it be controverted, that such a 
currency has been introduced into every quarter of the 
Union, in sufficient quantity. If it has not remained in the 
places where it was introduced, that cannot be chargeable 
to the bank, for the bank had no power to prevent its mi- 
gration or transfer. So far, therefore, as respects this great 
object — an uniform currency — the duty of the bank towards 
the public has been faithfully and fully performed. 

Nearly connected with this object, was the effort to make 
the branch notes payable everywhere, without regard to 
the place of payment indicated upon the face of them. It 
would undoubtedly have been a great public convenience; 
but it was more than the public had stipulated for, and more 
than the public had a right to expect. I think it easily de- 
monstrable, that the system could not be acted upon with- 
out great inconvenience and loss, and serious danger to the 



137 

institution. It must be remembered, however, that the 
practice of the late Bank of the United States, whose notes 
were only payable or receivable at the place where they 
were made payable on their face, had been strongly, though 
I agree unreasonably, reprobated. It must be remembered, 
too, that many well informed men believed in the practica- 
bility of the plan first adopted by the present bank, and 
probably nothing but experience, the most authoritative of 
all teachers, would have convinced them of their error. 
Under these circumstances the experiment was, perhaps, 
necessary to be made, in order that the public might be 
fully satisfied. It was certainly well meant and innocent. 
"The wants of the country, and the interest of the bank, 
(says the President, in his letter of the 4th October, 1817. 
Documents, p. 28,) require an extensive circulation of its 
paper; and it is the policy of the parent board to encourage 
the indiscriminate use of the notes of the bank, reserving 
for imperious circumstances, and inevitable occasions, the 
exercise of the legal right which it possesses, of declining 
to receive or pay, except at the respective places where 
payment is promised on the face of the notes." The ex- 
periment has been made ; experience has condemned the 
attempt; "imperious circumstances" have compelled the 
bank to exercise the right it possesses ; and I am glad to 
find that the report of the committee approves the change, 
and admits that it was made in the manner least exception- 
able and inconvenient. There must be an end now to the 
complaint made about this act of the bank. 

I will now ask the attention of the committee to another 
branch of the public management of the bank — that which 
regards its duties towards the government. Of the manner 
in which these duties have been fulfilled, no one can be 
better qualified to judge than the Secretary of the Treasury ; 
no one would more promptly feel the inconvenience of the 
smallest failure, as they are all intimately connected with 
the fiscal arrangements confided to his care. His testimony, 

IS 



138 

therefore, ought to be of the greatest weight with the com- 
mittee, if, indeed, it be not quite conclusive ; for distrust 
and suspicion must have acquired a most unreasonable and 
excessive influence in our deliberations, if they can incline 
us for a moment to question or doubt the statements of that 
high and distinguished officer. In a letter of the Secretary, 
during the last session of Congress, the words of which I 
cannot quote, but to which every member may refer on the 
fdes of the house, he expresses, acccording to my recollec- 
tion, a general approbation of the conduct of the bank, as 
having exceeded his expectations. In his letter of the 4th 
December, 1818, to the select committee of this house, 
(Documents, p. 95,) he states in detail how the specific du- 
ties of the bank towards the government have been per- 
formed. I appeal to that letter to show that they have al- 
ways been faithfully performed. 

But the manner in which the bank has performed its du- 
ties towards the government, the services it has rendered 
to the government and nation, cannot be more plainly 
evinced than by a statement extracted from the documents 
furnished by the select committee. The bank commenced 
its operations about the 1st January, 1817, excepting a loan 
to the government, of $ 500,000, made in December, 1816. 
The public deposites, on the 31st January, 1817, amounted 
to $ 1,147,772 97; in the following March they had risen 
to $11,615,017 62; the 30th April they were $ 11, 345,- 
796 75; and on the 29th July, $24,746,641 26. (See Ap- 
pendix A.) This, sir, was when the bank had been in 
operation but six months. That this immense amount of 
$24,746,641 26, was the saving of the revenue received 
during that time, no one will pretend. It was the accumu- 
lation of revenue previously collected, distributed through- 
out the United States, in credits of state banks, variously 
depreciated, and of which the government could not be said 
to have the command, because they were local, and of 
course applicable only where they happened to be, and 



139 

where the public service did not require their expenditure. 
By this single operation, twenty-four millions were thus 
converted by the bank from depreciated, local currency, 
into specie, or, what was equivalent to specie, of universal 
circulation, and which the government, through the agency 
of the bank, might apply, without expense, wherever, and 
whenever, its wants or its service required. 

Another conversion took place immediately after, high- 
ly advantageous to the government, and, I must be allow- 
ed to add, extremely unfavourable to the bank. With 
$13,398,438 02, part of the $24,746,641 26, which had 
thus been appreciated, and rendered available to the go- 
vernment, by the assumption of the bank, the government, 
on the 31st July, 1817, redeemed, at par, $13,398,43S 02 
of the public debt, belonging to the bank, which had been 
paid in by the subscribers. The report speaks in terms of 
censure, of what it styles the " unfounded and unnecessary 
complaint, by the officers of the bank, against this very 
prudent measure ;" meaning the redemption of the debt. 
That it was the right of the government to redeem, I do 
not deny. That the officer at the head of the treasury, 
whose first duty is to the government, was justified in the 
measure by a proper regard to the interests of the govern- 
ment, I shall not at all question. I will admit, too, that, 
as the government clearly had the right, and chose to ex- 
ercise it, complaint by the officers of the bank was alto- 
gether useless. But, that the operation was prejudicial to 
the interests of the bank, and might reasonably cause some 
dissatisfaction in those to whom those interests were con- 
fided, I deem most perfectly evident, and altogether consist- 
ent with that zeal for the real welfare of the institution, in 
which some other parts of the report seem to suppose them 
to have been wanting. By the original plan, a large pro- 
portion of the capital was to consist of public debt, bearing 
an interest, with liberty to sell in small successive portions. 
The value of such a possession, to a new institution, which 



140 

the report supposes ought to have "proceeded gradually, 
growing with the growth, and strengthening with the 
strength of the nation," (page 7) it requires no great finan- 
cial skill to estimate. It was a sure resource for obtaining 
the means of extending their business, when that should 
become expedient, and in the mean time was productive. 
It was all redeemed at once, and it was redeemed at par, 
when the market price was considerably higher. But, pass- 
ing by this loss on the redemption, the mere circumstance 
of withdrawing at once thirteen millions of stock, and throw- 
ing suddenly upon the bank thirteen millions of money, for 
which they were to find immediate employment, must have 
materially, and most injuriously interfered with their ar- 
rangements. There can be no doubt that it led directly to 
some of those measures (the extension of loans on stock, for 
instance) which the report most strongly disapproves. But, 
be that as it may, none can question the advantage of it to 
the government. 

By the redemption of the public debt, and payments of 
the government, the public deposites in October 1817, were 
reduced to $ 7,743,899 74. In October last, (1818) the go- 
vernment redeemed a moiety of the Louisiana debt, ex- 
ceeding five millions of dollars, and this, too, was done 
through the agency of the bank. 

Looking back to the period when the bank was estab- 
lished, considering the state of things at the moment when 
it came into existence, considering how short a time it had 
been in operation, and the difficulties it had had to sur- 
mount, the effect is wonderful, and, to all unprejudiced 
minds, would seem to indicate a steady and faithful atten- 
tion to all its public duties. Sir, that institution has been 
a servant, I had almost said a slave, to the public ; a faith- 
ful servant, always forward and zealous, even at some ex- 
pense to itself, to promote the public interests, in all their 
various and complicated relations. This is the spirit in 
which its affairs have been administered. It still continues 



141 

to perform all its public duties, without affording just cause, 
in this respect, either of complaint or of reproach. I might 
add to the list of benefits, received by the government and 
nation, the decided improvement which rapidly followed 
in the public credit of the country, both at home and abroad. 
If gentlemen doubt, let them consult the price current of 
stock here, and in England. 

The only allegation, indeed, of any thing even approach- 
ing to a default in the public duty of the bank, is that con- 
tained in page 10 of the report, where it is stated, "that 
the amount done under that resolution (to discount notes 
for those who had revenue bonds to pay) was small, &c." 
This is certainly a mistake, as has already been shown from 
the letter of the Secretary of the Treasury — from the evi- 
dence of Major Butler — and from the fact that there has 
been no complaint. Such has been the inclination to cen- 
sure, that you may rely upon it no well founded cause would 
have been suffered to escape. It is a mistake arising from 
the circumstance, acknowledged by a member of the com- 
mittee, (Mr. M'Lane) that the inquiry was ex parte. If 
they had asked for information, they would have learned, 
that at every discount day the directors had before them a 
list of the bonds coming due, and that they uniformly gave 
a preference to those who were to pay them, as far as 
they could do so consistently with the interests of the bank, 
of which I beg leave still to say they were the exclusive 
judges. 

The next object of inquiry is, how the management of 
the bank has been conducted in regard to the interests of 
the stockholders. This is altogether independent of the 
question of violation of charter, which will be considered 
separately hereafter. 

In the progress of an institution like the bank, founded 
and established with a view to certain great public objects, 
perplexing questions might, and would, occasionally pre- 
sent themselves. The interests of the public might, in 



142 

some instances, be at variance with those of the stockholders. 
Which were to yield? If, upon every such occasion, the 
directors had allowed a paramount influence to the interests 
of the stockholders, and had sacrificed the public objects to 
the profits of the institution, the public would then have 
had some reason to complain. But, if every public duty has 
been faithfully and fully performed, even beyond any rea- 
sonable expectation that could have been entertained, it is 
certainly a very singular inquiry to be made by Congress, 
whether the utmost has been done for the interest and pro- 
fit of the stockholders. That is an investigation which be- 
longs to the stockholders themselves, and which they are 
competent to conduct, having the means in their hands of 
correcting errors, and of removing grievances, by changing 
their officers. But what is to be the consequence, if Con- 
gress, assuming their power, should be of opinion that the 
institution has not been well managed for the interests of 
the stockholders? To alter the charter — to take away the 
charter — or subject it to the wasting and destructive pro- 
cess of a protracted judicial examination by scire facias? 
Have the stockholders made any complaint? Have they 
asked from us any relief? Not at all ; on the contrary, they 
implore us to abstain. You have upon your table a memo- 
rial to that effect from Boston, a memorial from New- York, 
and an exceedingly well reasoned memorial from Richmond, 
which deserves the attentive perusal of every member of 
the house. If their interests have been injuriously affected, 
they have, on that account, a stronger claim upon the pub- 
lic. After we have gained so many objects of great national 
importance at their expense, would it not be iniquitous, yes 
sir, a national iniquity, now to deprive them, by a wanton 
exercise of unjust power, of all the hopes of an equivalent, 
founded upon the public faith pledged to induce them to 
embark their property in this concern? Can you restore 
them to the state in which you found them? Will you re- 
turn that part of the bonus which has by this time become 



143 

due, and I presume been paid ? Will you restore to them 
their stock and coin? Will you, finally, indemnify the sub- 
scribers, and the purchasers, who have bought upon the as- 
surance of the charter, for the losses they will sustain? A 
gentleman from Virginia, a member of the committee, (Mr. 
Tyler,) seems to have intended to anticipate some of these 
inquiries, by saying, that the bank, after paying all its 
debts, could now return to every stockholder "dollar for 
dollar." A most honourable concession, undoubtedly, as 
it respects the management of the bank, and one that goes 
far to answer every complaint against it. For, if the pub- 
lic service has been punctually performed, and the bank 
(after dividing eighteen per cent, in two years and an half) 
could now wind up its concerns, and pay to every stock- 
holder "dollar for dollar," no man who has the slightest 
acquaintance with the matter can deny, that it must have 
been well managed. But how long would it require to 
gather together the funds that have been scattered over the 
United States, so as to be able to restore them to the stock- 
holders? Seven years have elapsed since the charter of the 
late bank expired ; its concerns were much less extensive 
in amount, as well as in the space through which they were 
spread ; it expired, too, under circumstances highly propi- 
tious for drawing in its resources; and the management of 
its affairs had been uncommonly able and faithful. Never- 
theless, I believe they are not yet closed. How long, then, 
I repeat, would it be, before this " dollar for dollar" would 
be restored to the stockholders ? It is matter of conjecture 
— but still with so much of certainty belonging to it, that 
no prudent man would give a stockholder any thing like 
" dollar for dollar" for his share of the proceeds. Sir, I 
cannot reflect upon the mighty wreck, without astonishment 
at the coolness with which even the possibility of it seems 
to be contemplated — The organization destroyed, the frag- 
ments scattered over the whole United States, no longer 
obedient to any power but the power of time and chance, 



144 

which, like the winds and the waves, may drive them to 
the shore, or may drive them where they can never be 
reached or collected. 

The first topic of complaint is the too great liberality to- 
wards the state banks. As a charge of error, it may not 
be wholly without foundation. But, it answers, fully and 
authoritatively, and I hope the sequel will show, satisfac- 
torily, one of the heaviest charges commonly made through- 
out the country against the bank — the charge, I mean, of 
having acted with oppressive rigour towards the state insti- 
tutions. I am glad the committee have cleared away this 
ground of accusation. At most, however, it proves only a 
mistake; a mistake on the right side, and a mistake that 
was almost inevitable. To bring about the payment of spe- 
cie, within any reasonable period, and at the same time to 
avoid a severe pressure upon the state banks, and through 
them upon the community, it. was indispensably necessary 
to treat those banks with the most indulgent liberality, 
wherever they manifested a sincere intention to return to 
the payment of specie. This was the inducement to the 
compact of the 31st January, 1S17. Without such indul- 
gence, the paper of the United States Dank, and that of the 
state banks, could not have circulated together. A good 
and a bad currency, or, if you please, a good and a better 
currency can never associate in circulation. They must as- 
sociate upon terms of equality, or approaching to equality, 
or they cannot associate at all. The continental money 
banished gold and silver. When assignats were used in 
France, specie disappeared. When, by excessive issues, 
or from whatever other cause, the state bank paper was de- 
preciated^ coin was no longer used. Where paper is now, 
from the same cause, depreciated, (as in some parts of the 
western country,) gold and silver or notes of the Bank of 
the United States, equivalent to gold and silver, are not to 
be found. They will not be found there, until either the 
better currency shall obtain the entire ascendancy, by ban- 



145 

ishing the state bank paper from circulation, or, by a re- 
moval of the causes that have occasioned depreciation, the 
latter shall be restored to an equality in value with the for- 
mer, which is on every account most to be desired. 

The next subject of complaint and censure is the resolu- 
tion of the 2Sth November, 1816, for paying the dividends 
of foreign stockholders in London, at the par of exchange. 
(Report, page S — 9.) I shall assume, for the purpose of 
treating this subject, a single maxim of justice, which every 
man will assent to as the only fair and reasonable rule of 
human judgment. It is, that, where an act is right in itself, 
the motives or reasons are not to be inquired into as a 
ground of crimination. They may strip the act of its claim 
to merit, but they can never expose it to criminal imputa- 
tion. Charity, indeed, common charity, between man and 
man, that which the infirmity of our nature demands to be 
continually exercised towards each other, adopts and ap- 
plies a much more comprehensive and benevolent rule — 
that even where the act is wrong, yet it may be exempt 
from censure, if the motives were just and good. Sir, 
without deciding whether that resolution was right or wrong 
in itself, and admitting that it was one of those "general 
and abstract subjects to which the resolution of the house 
did not direct their attention," the report condemns it as a 
measure adopted with a view to speculation, that is, upon 
what they suppose to have been bad motives. It is true, 
they take, also, another ground, which I will examine pre- 
sently, namely, the possible loss to the American stock- 
holders and government. But they do not deny, and 1 
think they most clearly admit, that the directors had a 
right to make the arrangement. 

If it had been the policy of Congress to prevent foreign- 
ers from becoming stockholders in the bank, they would 
have expressed it by a prohibition in the charter. The 
matter was not overlooked ; it was considered and discuss- 
ed in this house, when the law was passed. If it was the 

19 



146 

policy of Congress to permit foreigners to become proprie- 
tors of the stock — and certainly the refusal to prohibit 
amounted to an invitation — would the directors have been 
justified in adopting measures to thwart and counteract that 
policy ? It was their duty to execute the law in its spirit, 
to effectuate its intentions, to subserve, and not to defeat 
the policy of the government. If, substituting their own 
conceptions of what was politic, for the rule given to them 
by the law, they had pursued a different system, they would 
have made themselves justly obnoxious to censure and re- 
proach. Now, sir, the resolution in question had two ob- 
jects — 1. The payment, in London, of the dividends te> 
foreign stockholders: 2. The payment at the par of ex- 
change. The first of these the report does not much ob- 
ject to. It was done by the late Bank of the United States, 
as to its own dividends. That bank also remitted to fo- 
reigners their interest upon the public debt of the United 
States, I believe, free of charge. This is powerful evidence 
that it was advantageous to the institution, for now that the 
whole history of the late bank is before us, its life and its 
death, I suppose no one will deny that it was very fairly 
and skilfully managed. We have the example too, of the 
government, in the instances of the French and Dutch 
loans. Why was the interest stipulated to be paid abroad ? 
Because it was favourable to the credit of the country ; it 
enabled the government to obtain loans which it could not 
otherwise have had, or to obtain them upon better terms. 
The mere convenience to the stockholder, the freedom from 
risk and from the charges of receipt and remittance, when 
he has his interest sent to him, instead of being obliged to 
send after it, is a consideration of great moment — the same 
consideration which induces an individual to invest his 
money near to where he lives, though he might make a 
greater profit by investing it further off. Such an opera- 
tion, however, was inconvenient to the government ; be- 
cause it was not within the ordinary range of fiscal ma- 



147 

nagement ; and, therefore, the government proposed to 
exchange the foreign deht for a debt bearing interest, pay- 
able in the United States. As an inducement, they offered 
to increase the annual interest one half of one per cent. 
France accepted the offer; the Dutch refused it, estimating 
the convenience of receiving their interest at home at more 
than the annual one half of one per cent. Such an opera- 
tion, though inconvenient and burdensome to the govern- 
ment, is precisely adapted to the transactions of a bank, 
authorized by its charter to deal in exchange, and having 
established arrangements and credits for that purpose. It 
can remit and pay abroad with as much facility as it can 
pay at home. To my mind, therefore, it seems, that the 
measure, so far as regards the payment abroad, was not only 
justified by experience, by example, and by sound calcula- 
tion, but, that the neglect of it would have betrayed igno- 
rance, and want of foresight. I might instance, also, the 
Louisiana debt, which was taken by a single individual, or 
a single house, and sold at a profit by stipulating to pay the 
interest abroad. The second part of the resolution regards 
the rate at which the bank would engage to remit, and at 
which the stockholders would stipulate to receive the re- 
mittance of their dividends. For, we must recollect that it 
was a mutual contract, binding upon both parties. The 
bank would pay abroad upon no other terms but those which 
were prescribed. It cannot be denied that the directors 
had a right to arrange the terms. Dealing in exchange is 
one of their legitimate powers, expressly given by the char- 
ter, and as there is nothing which restricts them to succes- 
sive, unconnected instances, there can be no valid objection 
to such an exercise of the authority as is now the subject of 
discussion. There can be no doubt, therefore, of their right 
to " compel the American stockholders to contribute to the 
possible loss" (Report, page 8) upon exchange operations; 
and there can be none of its expediency and propriety, pro- 
vided there was a well grounded probability of profit in- 



148 

stead of loss. The directors had before them the experience 
of the past. From two tables before me, I can say, that, 
from the year 1791 to the year 1817, inclusive, the average 
of exchange has been greatly in favour of this country. 
The first of these is a statement from the treasury of the 
annual gain and loss upon remittances for payment of the 
Dutch loan, from 1791 to 1809. The gain is $409,197 20 ; 
the loss is $103,377 06. The clear gain upon the whole 
of the remittances is $305,S20 14.— (B) The other is a 
statement of the annual gain and loss by exchange, under 
the operations of the commissioners of the sinking fund. 
There is an uninterrupted annual gain, amounting, alto- 
gether, to $482,361 20, with only an apparent exception 
in the years 1815 and 1816. The exception is only appa- 
rent, for it was owing, not to the state of exchange, but to 
the depreciation of the currency with which the bills were 
bought. At the very time (and it is a convincing proof) 
exchange in Boston, where a sound currency was main- 
tained, was at or about par. Deduct those two years, 
($129,640 66) there is still a total gain of $352,720 54 — 
(C.) As far as the past can afford us any light to look into 
the future, this exhibition might be relied upon. It was 
not of a year or years, but an unbroken series of six and 
twenty years in succession. It was not of a period of uni- 
form character, either favourable or unfavourable. It em- 
braced the infancy of our government, the arrangement of 
our finances, years of prosperous commerce, and years 
when commerce was oppressed by formidable restrictions 
and impositions abroad, and by prohibitions and embargoes 
at home. It embraced a long period of peace, and a short 
period of war, (a proportion which I hope our history may 
always present) — it embraced, in short, exactly such a va- 
riety of circumstances, as, in the ordinary course of events, 
may be expected to happen, and, for that very reason, ex- 
actly such a period as a prudent man would select for the 
basis of his calculation. Experience, since, I am informed, 



149 

has given its sanction to the measure. I do not know the 
fact, but I am told there has been a gain upon exchange. 
The committee of directors, who reported against the mea- 
sure — who are complimented, and deservedly, too, for their 
able reasons, were, upon general grounds, in favour of it, 
as the report will show; and gave very "able reasons," the 
same which finally decided the board to adopt it, namely, 
" the effect which it would have in reducing the rate of ex- 
change, by inducing capitalists to invest their funds in the 
stock, and thereby facilitating the resumption of specie pay- 
ments. " They were deterred by then existing circum- 
stances, which are now proved to have been temporary ; 
and probably, among others, by the doubt, whether a sound 
currency could or would be very speedily restored. The 
remittance of the dividends they recommended without qua- 
lification. We are to recollect, also, that one of the terms 
of the compact was a delay of six months. The January 
dividend was to be paid in the following July, and the Ju- 
ly dividend in January. Supposing three months neces- 
sary for making the remittance — there would remain three 
months, during which the bank might have the use of the 
money, equal at least to one and a half per cent; and dur- 
ing which, too, the bank would have the range for select- 
ing the most favourable moment to buy exchange. Its 
range for selection would, indeed, be much more extensive 
— it would be almost unlimited ; for, as it was authorized 
to deal in exchanges, it would always have funds or credit 
abroad, to be applied or drawn upon, according to the state 
of the market for bills. 

If this measure were right to be adopted at all, it was right 
to be adopted at that time, and precisely for the reason as- 
signed in the letter of Mr. Donnel. If foreigners were to 
become the owners of stock, it was for the interest of the 
American stockholder, as well as for the interest of the na- 
tion, that the rise should take place before they became pur- 
chasers, rather than afterwards. This is a proposition no 



150 

one will be inclined to dispute, and of course it cannot, 
with any colour of reason, be denied, that if measures were 
in the contemplation of the directors, which would have 
a tendency to enhance the value of the stock, they were 
bound in duty to adopt them, in the early part of the institu- 
tion, so that the American stockholder might have the bene- 
fit of the rise, and not the foreigner ; and the nation thus 
have the advantage of the increase of the exchangeable or 
market value of the stock. The prospect of an enhancement 
of price was itself an equivalent to the American stock- 
holder for any possible loss on exchange. But while I agree 
that paying the dividends in England (which is not objected 
to) was calculated to raise the price of the stock, for the rea- 
sons before stated, I am not satisfied that paying at the par 
of exchange would necessarily have that effect. If it were 
likely to be advantageous to the bank, (as I believe it was,) 
it was for the same reason likely to be disadvantageous to 
the foreign stockholder. What the one gained on exchange 
the other would lose. The materials for calculation were 
as open to the one as to the other. The report seems to sup- 
pose, that it would raise the market in England, and that 
the rise there would operate upon the market here. The 
reasoning is incorrect — because, it looks only at one side of 
the question. We may affirm, with equal truth, that, if it 
was disadvantageous to the American stockholder, it would 
depress the market here, and that depression would affect 
the market in England. The market abroad, for our stocks, 
is regulated by our own, rather than our own by the fo- 
reign ; though, doubtless, they do somewhat affect each 
other. The only question, however, at last, is the one which 
I have before stated, and 1 hope, satisfactorily answered — 
was there a reasonable prospect of gain from this arrange- 
ment? But the gentleman from Virginia, who was one of 
the select committee, (Mr. Tyler,) has advanced an opi- 
nion, not the less extraordinary and unexpected for the ex- 
planation of it given by the chairman. He thinks that even 



151 

if there were a gain, it would not increase the dividends of 
the American stockholder, because, if I understand him cor- 
rectly, the remittance would not be made till after the divi- 
dend, and the loss or gain would not till then be ascertained. 
What then does he suppose would become of the gain ? 
Would it not go into the general profits of the bank ? He 
did not recollect, that, though the remittance would follow 
one dividend, it would precede another, through the whole 
term of the charter. It might with equal correctness be af- 
firmed, and for the same reason, that the dividend could 
not be diminished by a loss on exchange, and then, I sup- 
pose, we should arrive at a result exactly right, that the di- 
vidends would neither be increased nor diminished. A mo- 
ment's reflection will convince him of his error. And now, 
sir, I may be allowed to ask, whether this arrangement is 
not what every man would have made in his own case ? Is 
it not what every merchant does, habitually, and every 
planter too ? Why, then, should we impute it to unworthy 
motives ? 

Another, and a heavier charge, in the estimation of the 
report, is that which relates to loans on the deposite or pledge 
of stock of the bank. It is not disputed, and it cannot be 
disputed, that the directors had a right to lend on any sort 
of personal security not prohibited by the charter. It is 
equally beyond dispute, that the stock was a good security. 
The gentleman from South Carolina (Mr. Lowndes,) has 
stated, and the gentleman from Virginia has agreed, that in 
the event of a dissolution, the stock loans at par would settle 
themselves. If that be so, the security is unexceptionable. 
It is demonstrable, further, that, under the circumstances, 
the loans on stock were judicious, and for the interest of the 
institution. These loans did not originate in occasional re- 
solutions ; they had their origin in the fourth of the by-laws, 
adopted before the bank went into operation, in the month 
of December, 1816. The by-law is referred to in the re- 
port. There were vices in the banking system, as it was 



152 

then commonly conducted, which the directors of the Bank 
of the United States were anxious, as far as possible, to 
correct. Among them was the use of accommodation, or 
"credit the drawer" paper. Another, and a very serious 
one, was the extensive practice of mutual endorsements. 
A man who wished to get a discount, was obliged to bor- 
row the name of a friend, and, by borrowing, came under 
a well understood obligation to lend his own name in return. 
A connexion was thus formed involving both in the fate of 
either. If one failed, he dragged the other after him ; and, 
indeed, it often happened, that, by multiplied entanglements 
of this sort, the ruin of one man injured, perhaps destroyed, 
the credit of many. The fourth by-law was intended, and 
honestly and prudently intended, to diminish these evils. 
It provided that accommodation paper should not be dis- 
counted ; and, to limit, as much as practicable, the evil of 
mutual endorsements, it invited persons applying for dis- 
counts to deposite personal security instead of endorsers. 
The subsequent resolutions of the board, (excepting that 
of the 25th August, 1S17, which shall be distinctly consid- 
ered) were evidently adopted only to carry the fundamen- 
tal by-law into execution, by extending it to the branches, 
and by declaring the rates and other terms upon which the 
several kinds of stock should be received in pledge or de- 
posite. They are thus, by a very obvious reference to the 
original source, freed from the suspicion of having been 
produced by occasional motives of speculation, and placed 
upon their true foundation — which no one, I think, will 
deny, is solid enough to sustain them. Such was the cha- 
racter of the resolutions of the ISth December, 1S16, (Docu- 
ments, page 65) and of the 25th July, 1817, (page ) 
The resolution of the 25th August, 1817, authorized the 
loan of 125, upon stock, with two approved endorsers, who, 
as the report explains it, were only to be security for the 
25 per cent, excess beyond the par value of the stock de- 
posited. This resolution, I have no hesitation to say, I do 



153 

not approve, for reasons, however, very different from those 
stated in the report. Sir, the directors themselves did not 
long approve it. The resolution was acted upon but a 
very short time, not more than a week or ten days, and 
the amount loaned under it appears, from the documents, 
to have been very small. Let us now, for a moment, exa- 
mine the operation of these measures. The amount of dis- 
counts on stock, remaining unpaid on the 30th July, 1817, 
was $5,221,267 60— (Documents, page 60.) The total 
amount of discounts, then, was $25,770,120 59. So that 
there was loaned on personal security about $20,000,000, 
and on stock about $5,000,000, which no one can affirm to 
have been an undue proportion. If the original by-law, and 
the resolutions made in pursuance of it, were right, there 
was now additional motive for desiring to extend their 
operation — that is, to increase the loans on stock. It was 
originally designed, as I have already stated, that the capi- 
tal of the bank should be composed in part of public debt, 
bearing interest, and to be gradually converted into active 
capital. The whole of it, exceeding thirteen millions, and 
including two millions which the bank had endeavoured to 
convert into specie, for the benefit of the country, was re- 
deemed at par on the 31st July, 1817, and in place of it thir- 
teen millions of money were thrown into the bank, for which 
the directors were to find employment. If they were de- 
sirous to place a part of it in loans upon stock — upon a good 
security, bearing some resemblance to that which had thus 
been taken from them, rather than hazard it all at once upon 
personal security, it was a natural, a prudent, and a com- 
mendable desire, and it was in precise conformity with the 
original plan of the bank, as well as with the " gradual ex- 
tension," which the report, in one part, thinks was expe- 
dient. It was a desire, nevertheless, however prudent, not 
likely to be gratified. The stock was then rising, and had 
reached somewhere about 140, as appears from the table of 
prices exhibited by the committee. They were not to ex- 

20 



154 

pect stock to be deposited at par, when its market price was 
140. On the contrary, with a rising market, there would 
be a constant tendency to escape from the deposite, and to 
disappoint the wish of the directors, which was to increase, 
and nut tu diminish, this kind of security. It was under 
the influence of views like these, I should suppose, (as stat- 
ed by the late president, in his examination, among the doc- 
uments) that the resolution of the 26th of August, 1817, 
was adopted, combining the two kinds of loan — on personal 
security, and on stock — in order to increase the quantity of 
the latter. I repeat that I do not approve of this resolution, 
and for this simple reason — that as, in the discounts upon 
stock, they regarded only the security, and not the person, 
or the amount, I do not see how the two kinds of loan 
could thus be combined, without the temptation to lend more 
to individuals upon the personal security, than was either 
prudent or proper ; inasmuch as the loan upon the personal 
security was always to bear a fixed proportion to what was 
considered as lent upon the stock. But the question is, 
whether it was sincerely adopted, for the reasons given, and 
not to promote a scheme of stockjobbing. The board soon 
put an end to its active existence, which must be regarded 
as some evidence, at least, of sincerity. 

What are the objections made to this kind of discounts ? 
Not that they were insecure and imprudent, or unprofitable. 
No. To the whole of the loans on stock it is objected, that 
they inflated the price of the stock, in the language of the 
report, "kept it constantly advancing, until it reached a 
point where it exploded and fell." (page 11.) The first point, 
to be established, in order to support this position, is, that 
the stock ever has been inflated beyond its real value. What 
is its real value ? Sir, it is (within certain limits) matter of 
opinion, matter of conjecture, depending upon a thousand 
considerations, and, among the rest, at the present moment, 
depending upon the decision of this house. What will it 
rise to hereafter? No one can tell. It is an institution of 



155 

great resources, calculated, I believe, if supported by the 
public confidence, to be a blessing to this nation — in peace 
a bond of union, a sinew of strength in war. But what at 
any given time will be the price of its stock, I will not ven- 
ture to predict. Have purchasers been injured ? That, de- 
pends upon what the price will come to hereafter. But, 
though I will not undertake to answer either of these ques- 
tions, nor hazard any opinion upon the value of the stock, 
yet, injustice to the bank, I will venture to say, that, as far 
as my knowledge extends, there never was any great money- 
ed institution established, there never was any great moneyed 
operation commenced, that produced so little speculation. 
I do not advance this hastily, and I do not wish it to be as- 
sented to without full reflection. Speculation — stockjob- 
bing — these are the substance of all the charges, or the co- 
louring spread over them all. Where is the instance of a 
new institution, in which there was so much steadiness, so 
little extravagant speculation ? The maximum of the price 
of its stock (see Table among the documents) was in the 
latter part of August, 1817, when it had gradually reached 
56 per cent, advance. Do gentlemen recollect, or have 
they heard, what happened when the public debt was fund- 
ed ? One would suppose that nothing could have been less 
fit to occasion speculation. The amount was fixed, and 
could not be exceeded, the rate of interest was fixed at the 
current rate of the country, the period and manner of re- 
demption were also fixed, every thing, in short, was re- 
duced to the greatest possible certainty — yet the six per 
cent, stock rose to twenty-six shillings and threepence. It 
afterwards fell, considerably below par, and did not re- 
cover till I think after the year 1S03. We have another, 
and a much more striking instance in the establishment of 
the late bank of the United States. The scrip for which 
ten dollars had been paid, and no more, rose to two hun- 
dred and seventy dollars. Fortunes were made and lost. 
The roads between the commercial cities are represented to 



156 

have been covered with expresses, conveying intelligence 
of the fluctuations of the market, in order that they might 
be advantageously seized. The stock of that bank I have 
been informed, but do not speak positively, afterwards fell 
below par. Sir, I have seen many moneyed institutions 
established, and though I have had little to do with them, 
I have nevertheless had occasion to observe their usual pro- 
gress. Their history is nearly the same. At first, their 
stock has an extravagant rise, then succeeds an equally ex- 
travagant depression, and afterwards it finds what may be 
termed its just or natural level, that is, the level at, or near 
to which it rests, unless disturbed by some extraordinary 
occurrence, or moderately advanced by a gradual improve- 
ment. The stock of the late bank of the United States may 
be considered as having settled at about 50 advance, after all 
speculation had ceased. In the year 1S02 the United States 
sold 2220 shares at 45 advance, and they sold to a person 
who bought to sell again, and of course to sell at a profit. I 
have always understood that he did sell at a profit. Indi- 
viduals sold as high as 50 advance. (Seybert's Stat. An.) 
The permanent advance, therefore, was very little short of 
what has been deemed the inflated or speculation price of 
the present bank. I am aware that it may be said, and tru- 
ly said, that the late bank had some advantages which the 
present does not possess. But the existing bank has also 
some which were not possessed by the former. At the pe- 
riod we are speaking of, when its stock rose to 56, it had 
this most striking advantage, that not a year of its charter 
had expired, and there were above nineteen years remain- 
ing, whereas, when the stock of the late bank was at 50, 
eleven years had run out and only nine remained. This 
inflated price, therefore, was very little higher than the 
level, stationary price of the stock of the late bank of the 
United States. 

It is not correct to say that it "exploded and fell." (Re- 
port, page 11.) Allowing all reasonable indulgence to the 



157 

figure, it means, if I understand it, that the price was sud- 
denly precipitated, when the artificial means used for its 
elevation ha.l ceased to operate, or ceased to produce any 
effect. It is not correct. The table of prices annexed to the 
report of the committee shows, that its decline was gradual, 
and that decline can be traced to other causes, which I will 
advert to presently. The price was highest in August, 1817: 
it began to fall, but not materially, in September, 1817 — 
and it had not arrived at the lowest point of depression, ( 110), 
what in the table is called "the lowest price," till Novem- 
ber and December, 1S18, more than a year after the depres- 
sion began. The Table does not give us the intermediate 
prices, but we know, from other sources, that the decline 
was not considerable during the first part of that period. It 
may be dated, chiefly, from the summer of 181 S, and may 
be traced to causes which not only had no connexion with 
artificial means, but are wholly inconsistent with their use. 

Again, sir, let us examine in another point of view these 
charges against the loans upon stock. 

The price on the 20th of August, 1817, was from 144 to 
147, to which it had gradually attained. How could suc- 
cessive, repeated advancements of price be owing to a re- 
solution adopted before the organization of the bank, per- 
manent in its nature, and operating uniformly from the first 
adoption? There is some confusion in the treatment of this 
part of the subject. One would be led by the language of 
the report, to suppose, that there were successive measures 
brought forward from time to time, and calculated continu- 
ally to stimulate the market, which was stimulated accord- 
ingly. The fact is not so. It was a system — the founda- 
tion was laid in the 4th by-law, and the subsequent resolu- 
tions, all conformable to that by-law, were merely execu- 
tive or ministerial, to carry it into effect. The committee 
have themselves furnished the most conclusive evidence that 
the supposed facilities for obtaining money were not so ea- 
gerly seized upon, and for that very reason not calculated 



158 

to produce the effect imputed. The amount loaned upon 
stock, prior to the 30th of July, 1817, had been as high as 
$ 8,046,932 64. It was at that time only 5,221,267 60. 
(Documents page 70.) Of course, 2,815,665 04 had then 
been redeemed and withdrawn, voluntarily, as respects the 
borrowers, and against the policy and the true interests of 
the bank. The bank could not lend in this way as much as 
it might prudently desire. This statement is what I alluded 
to, when I said some time ago that there was a continual 
tendency in the deposite to escape. That the resolution of 
the 26th of August (for advancing $ 125) had no influence 
in raising the price is most evident. On that day it was at 
150, nearly the maximum; it rose but very little in the 
next three or four days, and then, instead of rising, began 
to decline. 

But this resolution is supposed by the report (page 11) 
"to have given equal facilities to the bankrupt who had not 
credit enough to obtain an endorser, and to the capitalist. 
Stock, it is said, could be and was purchased without the 
advance of a cent by the purchaser, who had only to ap- 
ply to the directors, or to the President and Cashier, be- 
tween discount days, for a loan on the shares about to be 
bought, and by what is termed a simultaneous operation, 
he obtained his discount, and with it paid for his stock. 
A rise in the market would enable him to sell his shares, 
pocket the difference, and commence operations anew." 
Nothing can be more inaccurate, more strikingly inaccurate 
than the whole of this reasoning; and nothing more desti- 
tute ,of solid support than the hasty condemnation founded 
upon it. It fails, entirely, in point of fact. For, in the first 
place, the price of stock, on the 26th of August, 1817, was 
150. A loan could be obtained upon it of only 125. There 
remained, therefore, 25 dollars a share to be supplied from 
the resources of the purchaser. Again : For the 25 dollars 
excess beyond the par value of the share, "two approved 
names" were required, (Documents 79.) Thus the bor- 



159 

rower was to find an "approved" endorser, and was to 
furnish 25 dollars a share in addition to what the bank 
would lend him. How, then, can it be affirmed, that this 
resolution " gave facilities to the bankrupt, who had not 
credit enough, to obtain an endorser?" How can it be 
said, that by means of it stock could " be purchased with- 
out the advance of a cent?" Or, that, with the money- 
obtained from the bank, the purchaser "could pay for his 
stock V [Here, Mr. Spencer rose to explain, and stated 
that the reasoning quoted from the report was not meant to 
apply to the resolution of the 26th of August, but to the 
previous resolutions authorizing loans at par.] Sir, the 
reasoning immediately follows the statement of the resolu- 
tion of the 26th of August, and seems to be most espe- 
cially, if not exclusively, applied to that resolution. But I 
accept the chairman's explanation, and will the reasoning 
be any better? Rather worse I think. Under the resolu- 
tion of the 26th of August, the purchaser was to furnish 
25 dollars a share, in money, and an endorser for 25 dollars 
more. Under the resolutions for loaning at par, he would 
have to advance 50 dollars a share, (150 being the market 
price) which I suppose would be at least as difficult for " a 
bankrupt," and quite as inconsistent with the idea of buy- 
ing " without the advance of a cent," as advancing 25 dol- 
lars, and finding an endorser for 25 more. 

While I am upon this part of the subject, I would take 
the liberty of asking a question of the chairman of the se- 
lect committee. The report (page 11) says that "a rise in 
the market would enable him (the purchaser) to sell his 
shares, pocket the difference, and commence operations 
anew." I should be glad to be informed, how many times 
a man must commence such operations anew, how many 
times he must buy and sell in a market " constantly ad- 
vancing," before he will make a profit? If the market was 
" constantly advancing," as the report states it was, it 
would seem to me very difficult to understand how succes- 



J 60 

sive operations could benefit the speculator. I should sup- 
pose, from a plain calculation, that the oftener he bought and 
sold, the less stock he would have, and, repeating the "ope- 
ration" a sufficient number of times, and a slight depression 
supervening, he would inevitably lose his whole capital. 
The report, sir, goes on to charge that the loans were 
"unreasonable and excessive," were not made "to mer- 
chants and traders," but " to a few persons, consisting of 
" directors, brokers, and speculators," and that very little 
"good business paper was done." (Report 10, 11.) Upon 
what foundation of fact these charges rest, we are not pre- 
cisely informed. The members of the committee have re- 
ferred to a list of borrowers which has not been printed, 
and they have differed from each other as to the true pur- 
port of that list. The member from South Carolina, (Mr. 
Lowndes,) one of the committee, has stated that a large 
proportion of the borrowers were "merchants and traders." 
It is of no manner of consequence, for it is not denied, but 
it is agreed, that these loans were offered indiscriminately 
to all who could give the required security — that they 
were made with impartiality, and without favouritism — and 
that, in making them, the directors did not regard the oc- 
cupation of the borrower, provided he offered good secu- 
rity. Was not the security unexceptionably good — the best 
that could be offered ? Suppose these same " speculators" 
had got discounts on funded debt, would there then be any 
complaint? Where then is the point of this accusation? Do 
gentlemen mean to establish a high moral standard, gradu- 
ated not by the laws of the land, nor with any reference to 
the nature of the subject, by which the directors of the 
bank are to be governed in exercising a censorial authority 
over the lives and occupations of those who come to bor- 
row, and by which they are themselves in turn to be tried 
and censured ? We are all of us fond of power, and suffi- 
ciently inclined to abuse it. What power could be more 
dangerous, what more liable to abuse, what more inevita- 



161 

bly tending to generate a tyrannical spirit in the heart of 
man, than such an authority — no matter by whom exercis- 
ed — to become a censor and inquisitor of the thoughts and 
occupations and conduct of his fellow creatures; to judge 
them, not by the laws of the land, nor by any defined or 
established rule, but by an arbitrary and fanciful theory of 
his own creation ? Sir, is it not enough that these loans were 
not prejudicial to the interests of the institution, that the secu- 
rity was unexceptionable, that they were impartial and gene- 
ral? Is it not enough that there were at least very plausible 
reasons, if not conclusive ones, for making them ? Is it not 
enough, that they were prohibited by no law, and that they 
were made by the directors under a discretion committed 
to them ? That they are still safe and good ? That they 
were made to persons exercising occupations not forbidden 
by law, who were not prohibited from borrowing, and to 
whom it was not unlawful to lend? If they were right in 
themselves, let us not engage in needless inquiries, that 
can do no possible good, and may do much mischief. 

But the report expresses surprise "at finding so little 
good business paper done at the bank and its offices." 
How, in the course of such an examination, (completed in 
three weeks) it was ascertained what quantity of "business 
paper," usually so called, was done at the "bank and its of- 
fices" or what "good" business paper was clone, or whe- 
ther any was done that was bad, or whether any good or 
had was refused, and for what reasons, I am at a loss to 
understand ; especially as there was no opportunity for ex- 
planation. I take it for granted, from other parts of the re- 
port, that this phrase is meant to apply, though applied 
inaccurately, to loans on stock, as contradistinguished from 
loans on personal security. In that sense, without admit- 
ting our right to regulate the business of discounts — in that 
sense, the surprise expressed appears to be unwarranted. 
When the loans on personal security were $20,000,000, 
the loans on stock were $ 5,000,000. When the loans on 

21 



162 

personal security were $30,000,000, the loans on stock 
were $11,000,000; and that proportion never was exceed- 
ed. (See documents page 70, and table 43.) 

There is still another accusation, which I have heard 
here and elsewhere, and which, for that reason, I have 
been at some pains to examine. The "curtailment," (says 
the report, page 11) "fell, in almost all cases, upon the 
business paper;" by which is here meant the paper for 
loans on personal security. The table 43 furnishes a most 
conclusive answer to this allegation. 

The greatest amount loaned on stock appears to have 
been in January and February, 1818, $11,244,514 19 

In November, ISIS, it was reduced to 8,934,712 94 



Reduction $2,309,801 25 

The greatest amount loaned on personal security, was in 

March and April, 1818, $30,318,932 50 

In November, 1818, it was reduced to 26,9S9,992 12 



Reduction $3,328,940 38 

The reduction on stock is beyond all proportion greater 
than on the personal security paper. 

Take another period — that given by the committee. 

In July, 1818, the loans on stock were, $10,657,125 85 

November, 1818, 8,934,712 94 



Reduction $1,722,412 91 

In July, 1818, loans on personal security, $28,S36,670 2S 
November, 1818, 26,989,992 12 



Reduction, $ 1,846,678 16 

There is another period stated, (June and July) which 
gives a result somewhat different, but still shows the stock 
loans to have been more than proportionably reduced. The 
first, however, is most fair, as it gives a reasonable range. 
I have gone into these details, sir, not for the mere pur- 
pose of differing from the committee, or pointing out inac- 
curacies in the report, but to avoid hasty results, from a 



163 

superficial examination. The conclusion, so far as we have 
gone, is, that the inferences are not warranted. Every 
measure is fairly accounted for, provided you examine it 
upon its own merits, free from the prejudice of extrinsic 
considerations. I shall trouble you no more with particu- 
lars that must, necessarily, be tedious and uninteresting. 
There is one allegation of the report, however, which the 
chairman has voluntarily corrected, admitting that the lan- 
guage is broader than he meant it to be. It is the assertion, 
in page 10, that " the principal business of the bank certainly 
has been to discount on notes secured by a pledge of 
stock;" an assertion which, as it stands in the report, did 
certainly occasion some astonishment. It is now explained 
to be meant only of the operations at Philadelphia. We 
have no table that shows how much of each kind of paper 
was done at Philadelphia, and, therefore, cannot fix with 
any precision what is to be understood by this vague ex- 
pression, "the principal business." But, is it not easy to 
account, and to account fairly, too, for the fact, supposing 
it to be as stated? The largest loans on stock would natu- 
rally be where the largest quantity of stock was held, and 
where there was most of that kind of security to offer. The 
largest loans were accordingly at Philadelphia and Balti- 
more. The list of subscriptions to the bank (No. 47) gives 
us the following : At Philadelphia 8S,520 shares; at Balti- 
more 40,141 ; at New-York 20,012 ; at Boston 24,023. It 
is worth remarking, though not directly applicable to the 
present purpose, that at Charleston there were 25,9S6 shares 
subscribed, more than either at New- York or Boston. At 
Richmond, 16,987 shares ; at Washington 12,708; and at 
Lexington, Kentucky, 9,5S7, nearly half as many as at 
New- York. I would remark, further, with regard to the 
loans on stock at Philadelphia, that they were not confined 
to stockholders in Philadelphia, but a considerable portion 
of them was for persons residing in different parts of the 
Union, who, from some cause or other, found it most con- 



164 

venient to get their loans there. This is a fact well known 
to the committee, from whom indeed I have derived it. 

But the heaviest charge of all, in the estimation of the 
report — that which pervades and gives a colour to the whole, 
at the same time that it is of no manner of importance in 
the present inquiry— is the charge of speculation made 
against individual directors and officers of the institution. 
How far jt may be justifiable or proper thus to scrutinize 
the private transactions of men, in order to fasten upon 
them, by an ex parte inquiry, the imputation of an unde- 
fined and imdefinable offence — to hold them up to public 
odium, under the authoritative sanction of a committee of 
this house — it would be useless now to inquire. Specula- 
tion and speculators, sir, are terms of very vague import, 
and of very extensive application. There are speculators 
of many kinds — there are speculators in lands — there are 
speculators in merchandise — there are speculators in manu- 
factures — there are speculators in stocks ; the variety is 
infinite, and in no country upon earth greater than in this. 
Every thing about us invites to speculation. Such are the 
resources, such the youthful energy of our happy country, 
that a man can scarcely apply his labour or his money amiss ; 
wherever he employs them he is sure of a liberal and rapid 
increase. Not an axe sounds in the forest, without adding 
to the sum of national wealth. I should like, then, to know, 
in what the discrimination consists, which makes one kind 
of speculation offensive, and another innocent, if both are 
permitted by law, and neither unfairly or fraudulently con- 
ducted. What is the difference between speculating in land, 
and speculating in merchandise, or the stocks? Sir, the 
charter does not prohibit dealing in the stocks, either to 
directors, or to the officers of the institution ; it is, there- 
fore, not unlawful or criminal. The omission, with respect 
to the officers, cannot have been casual, or accidental. If 
my recollection be accurate — I do not speak positively — it 
was prohibited, as well as every other kind of trading, to 



165 

the officers in the late Bank of the United States. I know 
it is prohibited by law in most of the state institutions. It 
is impossible that it should have escaped the attention of 
Congress. — But let us examine this matter, and not be car- 
ried away by general denunciation. That a man might sub- 
scribe, and yet be a director, is not to be questioned ; none 
but a subscriber could be a director. Every subscription 
had a view to profit or advantage, and was so far a specula- 
tion. Large subscription in general had a view to profit, 
by selling, and the larger the subscription, the greater spe- 
culator was the subscriber, and the more was he interested 
in advancing the value and price of the stock. Was he, on 
that account, incapacitated to be a director? On the con- 
trary, was it not thought, and with some appearance, at 
least, of reason, that the greater his stake in the institution, 
the more he would feel interested in its prosperity? Again 
— the committee, adopting a distinction I do not very well 
understand, find no fault with a director for buying, or for 
selling. And yet, is it not most obvious, that the one ope- 
ration would make it his interest to depress, and the other 
to raise the price; that in the one case he might buy as 
cheap, and in the other sell as dear as possible? The whole 
censure of the report is directed against those who bought 
and sold — who dealt in the stock. It would be very diffi- 
cult to make out that one who thus dealt in buying and sell- 
ing, was more likely to be affected by it in his conduct as 
a director, than one who only bought, or one who only 
sold. On the contrary, as his interest would be sometimes 
on one side, and sometimes on the other, he would be less 
likely to be permanently influenced, or influenced at all. 
But this is, itself, mere matter of speculation, and specula- 
tion of the most dangerous sort ; because it subjects the con- 
duct of men to speculative examination, and to speculative 
conviction. It is a speculation upon character, where there 
ought to be, and where there is a plain practical rule which 
will be sure to guide us to a safe result. Upon this part of 



166 

the subject I wish to be clearly understood. The rule a 
man ma) r think proper to lay down for the government of 
his own conduct, is one thing; the rule he will adopt in 
judging the conduct of others, is another. In fixing a stand- 
ard for his own government, it matters little how high he 
may raise it — if he aim at all the perfections contained in 
the table of the illustrious Franklin, so much the better. 
Should he fail, as he assuredly will, of reaching the highest 
point, he will nevertheless be rewarded for his pains. He 
will promote his own happiness, and, from the difficulties 
he has to struggle with, he will learn a lesson of charity 
towards others, which increased contentment with himself, 
at every step of his progress, will every day more and more 
qualify him to practise. But, when a man undertakes to 
judge the conduct of others, let him beware how he applies 
to it a severer rule than the law of the land and the law of 
their peculiar condition have laid down. Sir, 1 know no- 
thing, by experience, of speculation. I have never dealt in 
the stock of this bank. I have never bought a share, nor 
sold a share, nor been interested in the purchase or sale of 
a share. I have never borrowed a dollar from the bank. 
But I claim no credit for forbearance. When I am not here, 
endeavouring to serve my constituents, according to the 
humble measure of my abilities, I am engaged in the labours 
of a profession which do not consist with engagements in 
trade, or dealing, or speculating, or borrowing. These are 
no part of my business, and whether I abstain from them 
because I think it prudent, or because I think it right — from 
motives of policy, or from motives of a higher nature — is 
altogether indifferent. I choose to abstain from them, and 
no one has any right to inquire why I do so. I acknowledge 
that I should be wanting in consistency of character, and 
might be justly exposed to suspicion, if, upon becoming a 
bank director, I were to abandon my former habits and oc- 
cupations, and become a dealer in money and in stock. But, 
if you make directors of men whose daily business and oc- 



167 

cupation it is to trade, to buy and to sell, to deal in stocks 
and in money, (and such men are not proscribed, they are 
indeed the very men who are deemed best qualified to be 
directors) — do you expect them thenceforth, to give up their 
occupations, to purify themselves from the love and desire 
of gain, in order that they may be qualified for the due per- 
formance of the trust, or escape the charge of being specu- 
lators and stockjobbers? It is idle to talk of it. Nobody 
expects it, nor do I know that it is to be wished. If there 
is any evil experienced, the stockholders have power to 
correct it by election, or by by-law. But, for the present 
purpose, there is a plain practical rule upon this subject, 
safe and sure in its application. Has all this imputed specu- 
lation affected prejudicially the interests and management 
of the bank? If the trust has been betrayed, if the bank 
has been mismanaged towards the public, and the property 
of the stockholders sacrificed to subserve the purposes of 
speculation, let condemnation fall with its heaviest weight 
upon those who have abused the confidence reposed in them. 
This is the question, if there be any question to discuss, 
respecting the management of the bank. To this question 
I have endeavoured to draw the attention of the house ; and 
if the views I have presented be at all correct, I think it 
has been fully and satisfactorily answered. 

Justice to those who have had the direction of the bank 
requires a few words more. You have, it seems to me, 
the strongest positive evidence of the sincerity of the di- 
rectors, and of their confidence in the administration of the 
bank. Did they sell out before the fall of price took place ? 
With only one exception I believe, (any member of the 
committee can correct me if I am in error,) with one single 
exception, the directors, who are charged with speculation, 
held, and continued to hold, at that very time, quite as 
large, if not a larger quantity of stock, than they had held 
at any antecedent period ; thus resting their own hopes and 
fortunes upon the stability of their measures. Again — the 



168 

fall of price itself was owing to their own acts of manage- 
ment — acts necessary and proper, but which they must have 
foreseen, would unavoidably depress the market. We know 
full well that it is the rate of dividend which chiefly regu- 
lates the permanent price of every stock. Did they ever 
make an unjustifiable dividend? It is not pretended. The 
first serious impression made upon the market, was by the 
reduced dividend of three and a half per cent, in July last. 
I say reduced, in comparison with the former dividends, 
which had been four per cent. That affected the stock. 
Then came the change in the character of the branch notes, 
which occasioned some uneasiness, and much unfounded 
clamour. At the same time there was a rapid reduction of 
discounts, which had the double effect of lessening the pros- 
pect of dividends, and of diminishing the quantity of money 
in circulation ; both calculated to lower the price of stock. 
These were measures necessary and proper for the security 
and safety of the institution, now approved by every one^- 
but they were all measures most obviously unfavourable to 
the market. They were adopted, and persevered in by the 
directors, because they were necessary and proper, thus 
giving to the public and the stockholders the surest pledge 
of their fidelity to the trust, and of their determination to 
prefer it to any interests of their own. 

Of the officers of the institution, it would be sufficient to 
say, that neither the law nor the stockholders restrained 
them from trading, and there is no reason to believe that 
they have in any instance neglected or betrayed their duty. 
In what I have heretofore submitted to the house, I have 
founded myself almost exclusively upon the documents fur- 
nished by the committee. On this point, will the house 
permit me to say one word from my own personal know- 
ledge? Sir, I have had full opportunity to observe the con- 
duct of the late president, (Mr. Jones,) and I can assure the 
house that I believe no institution ever had a more honest, 
zealous, and devoted officer. He has sacrificed his health 



169 

in its service, by incessant and laborious exertions to pro- 
mote its prosperity, which seemed, indeed, to be the only 
object of his thoughts and cares. I know not who may be 
placed hereafter at the head of the bank, nor will I pretend 
to enter into any comparison of other qualifications; but I 
am sure that I can wish it nothing better than that all its 
future presidents may be as faithful, as honest, as industri- 
ous, and devoted, as their late President. 

It is time to come to a conclusion of what relates to the 
management of the bank. Can I ask more to sum up the 
evidence of its fidelity, than the statement of the gentleman 
from Virginia, (Mr. Tyler,) that if dissolved it is now able 
to pay dollar for dollar? 

That there have been some errors cannot be doubted, 
but they have been mere errors, such as all men are liable 
to, and they have always been on the right side. Among 
them, however, I do not consider the practice of selling 
drafts to be one. It is the right of the bank, admitted to 
be so in the report, (page 5.) It is perfectly fair, and one 
of the most legitimate sources of profit, inasmuch as it is 
expressly indicated in the charter. Upon what principle, 
I would ask, is it, that what an individual may do without 
reproach, is not to be done by the bank ? Why, having a 
fair marketable commodity to dispose of, shall it not sell at 
the fair market price? Why should it not in this respect 
be put upon an equal footing with individuals? Until these 
questions are answered, it is unnecessary to say any thing 
further. A premium or advance is an indemnity for the 
remittance of funds, varying a little, according to circum- 
stances. Ought the bank to remit the funds of individuals 
at its own expense? It would be unjust as respects the 
bank ; it would be objectionable as regards the community ; 
for it would open the door for favouritism and partiality. 
A fixed rate (which the report page 5 thinks ought always 
to be observed) is plainly impracticable. But of this, I need 
say no more. It is now settled upon its just foundation ; it 

22 



170 

is the right of the bank, and does no wrong to any one, as 
no man is obliged to buy from the bank, or sell to the bank, 
but makes the bargain voluntarily and for his own conveni- 
ence. I am confident, however, that what the report says, 
in page 5, of the fluctuation from one to five per cent, is 
incorrect. It must be a mistake. 

I forbear to trespass further on the patience of the com- 
mittee upon this part of the subject, and proceed at once 
to the second general ground of inquiry. 

Has the charter been violated so as to work a forfeiture? 
This single question would afford materials for a very co- 
pious discussion, much more copious than I am disposed to 
undertake, after having already taken up so much of your 
time. I would address myself first to those gentlemen who 
hold the opinion that Congress have no constitutional pow- 
er to charter a bank. Such an opinion, I know, admits of 
no compromise, but certainly there is a great difference be- 
tween the question that arises when it is proposed to estab- 
lish a bank, and that which presents itself when it is pro- 
posed to pull down and destroy an established institution. 
The very repeal of a law admits its constitutional validity, 
for, if it is unconstitutional it is void of itself; and therefore 
a vote for a repeal can scarcely be regarded as the expres- 
sion of an opinion that the law is unconstitutional. I lay 
no stress at this time upon the repeated recognitions, which 
must now be considered as having definitively settled the 
construction of the Constitution. Every one can give to 
this consideration its due weight. But, I would ask gentle- 
men to remember, that the charter of this bank received all 
the constitutional sanctions, was promulgated to the country 
and to foreigners as a constitutional law, and has now been 
two years in force. Great interests are connected with its 
existence ; incalculable mischiefs, public and private, will 
follow its repeal, and among them, not the least consider- 
able, will be the wound inflicted upon the character and 
credit of the nation. How shall we stand in the estimation 



171 

of foreigners ? I am afraid to follow out the inquiry. Let 
every one reflect for himself, and as he values the national 
reputation, so let him decide. I cannot, however, at all un- 
derstand the grounds upon which gentlemen who have con- 
stitutional objections, can vote for a scire facias. That pro- 
ceeding distinctly admits the legal existence of the hank, 
and sends it to the judiciary to be tried for its life, to de- 
termine whether it has not forfeited its right to continue 
longer to exist; an admission wholly inconsistent with the 
opinion alluded to. J5ut, of this, every member must judge 
for himself. 

If Congress had a power to incorporate a bank, and have 
exercised that power according to the Constitution, no ar- 
gument can be necessary to prove that we have no right to 
repeal the charter. This is a settled, established principle, 
founded in the nature of the power, and almost universally 
conceded. Chartered rights are sacred things ; they are the 
rights of individuals guarantied to them by the public au- 
thority, and of which no lawful authority can deprive them, 
but that which the charter itself prescribes, or which is im- 
plied from its nature, to be exercised in the manner point- 
ed out by the charter, and according to the law of the land. 
Any other mode of proceeding to deprive this legal being 
of existence would be an act of lawless, unjust violence, as 
much forbidden as to legislate away the life of a natural 
being. That we have a right to send this corpora ion to 
the judiciary, there to undergo its trial and receive its 
judgment, no one can deny, for so the charter has express- 
ly provided. It is equally clear, I think, that here we are 
to exercise a sound discretion. If we are satisfied that the 
charter has been so violated as to work a forfeiture, still 
the question of expediency is open. We may deem it for 
the public interest to continue its existcr.ee, withe ul all or- 
ation ; to reorganize, if its organization has been impaired; 
to propose changes in its structure ; or to let it go down, 
and, if needful, raise up a new institution. We are not 



172 

bound, even in that case, in the case of a clear unequivocal 
forfeiture, to send it 1o trial and condemnation. Is it not 
equally plain, that we ought not to send it to trial, if we 
are satisfied that there has been no forfeiture? Why ex- 
pose ourselves to the certain consequence of a failure? It 
will assuredly not increase the public respect for our con- 
duct. We may lose somewhat in the public estimation. 
Why subject the bank to the destructive effect of a pro- 
tracted criminal proceeding, when no offence known to the 
law has been committed? A gentleman from Virginia, (Mr. 
Tyler,) calculating that such a proceeding would not be 
terminated in less than eighteen months, says it would give 
time to wind up the concerns of the corporation, which he 
thinks might now be done most advantageously for the 
stockholders. He takes it for granted, then, that the cor- 
poration would be condemned ; that a scire facias and con- 
viction are the same thing. But, the officers of the corpo- 
ration will not so consider it ; they are not at liberty so to 
consider it; they must go on and discharge their ordinary 
functions in the ordinary way, until its doom shall be fi- 
nally pronounced, and then, and only then, would they be 
justified in commencing the arrangements that are to follow 
its dissolution. Till then, it is a subsisting corporation, en- 
titled to enjoy all its rights, and bound to perform all its 
duties. But, let us Suppose a more favourable issue. Let 
us suppose it to be acquitted. Will it pass through the trial 
unhurt? This artificial being, though it has not precisely 
the same sort of susceptibility as the natural being, is 
nevertheless exquisitely susceptible; it may be wounded, 
dangerously wounded, in its credit. This is its living prin- 
ciple, the source of all its healthy action, upon the preserva- 
tion of which, the capacity to perform its functions mainly 
depends. There, it will be wounded by the mere institu- 
tion of a criminal proceeding. It behooves us then carefully 
to examine the ground before we determine to proceed. 
What, I ask, then, is such a violation of the charter as will 



173 

work a forfeiture ? The report admits that there is a dis- 
tinction, in this respect, and that there may be violations 
or non-compliances which do not forfeit. It must be so. 
Every act that is forbidden by any law which it is bound 
to obey, every failure to do what any such law requires, 
no matter how minute, or to what cause owing, is a violation 
or non-compliance with the charter. It surely will not be 
pretended, that every such violation or non-compliance 
amounts to a forfeiture. It isno more true than that every 
such act or omission by an individual would merit the pun- 
ishment of death. The act done may be void, because it is 
illegal ; it may incur a particular penalty, because it is to a 
certain extent criminal, but it will not therefore amount to 
a forfeiture — the extreme punishment for extreme offence. 
What, then, I repeat, is such a violation? In the first place, 
it is obvious, from the charter itself, (Sect. 7. 23.) that it 
must be an offence of the corporation. The acts or de- 
faults of officers, servants, or agents, do not necessarily 
work a forfeiture. Neither is it to be supposed that error, 
mistake, or even every species of misconduct, will cause a 
forfeiture. It can only be by such departure from, or ne- 
glect, or, if you please, violation of the fundamental and 
vital laws of its organization, as incapacitates the corpora- 
tion to perform its duty, or does of itself determine its ex- 
istence. These offences, if they are so to be termed, can 
be reached or redressed by no other means. If, for instance, 
an election had not been held at the time appointed by the 
eighth section, without the saving provision of that section, 
there could have been no election at all, and for want of an 
integral and vital part of its organization, the corporation 
would have ceased to exist. The charter itself has made 
the distinction. In the ninth article of the eleventh section, 
the corporation is expressly prohibited from dealing except 
in certain enumerated articles, and among them is public 
debt. In the tenth article, it is prohibited from making 
loans to the United States, or to particular states, beyond a 



174 

limited amount. It would violate the charter if it were to 
offend against either of these articles. What, then, is the 
charter forfeited ? No : The twelfth and thirteenth sections 
establish the sanction for these prohibitions, by providing 
specific penalties, to be inflicted, not upon the corporation, 
but upon the individual transgressors. In the seventeenth 
section, also, the penalties are denounced for refusing to 
pay specie. 

To sustain the contrary doctrine, the gentleman from 
Virginia has quoted and relied upon the famous proceed- 
ing, by quo warranto, against the city of London, in the 
time of Charles the 2d. It is a bad precedent from bad 
times. Sir, the administration of private justice in England 
between man and man, has for a long time flowed in a clear 
and steady current. You may generally appeal with safety 
to the precedents it affords. But when you come to exa- 
mine the proceedings in crown causes, you will err most 
lamentably, unless you are aided by the light of cotempo- 
raneous history. Is the gentleman from Virginia acquaint- 
ed with the character of the precedent he has quoted for 
our imitation and adoption? I will take the liberty to refer 
him to the historian for an account of it. It occurred in the 
year 16S3, at a time when the Royal prerogative, already 
most alarmingly extended, was abusing the power it had 
derived from the circumstances that attended and followed 
the restoration, to obtain an unlimited ascendancy. To 
break down and crush the spirit of the city of London was 
a favourite and important part of this system. The charges 
made against the city were two. The markets had been 
destroyed by the fire of 1666, and new ones rebuilt, with 
many conveniences. To defray the expense, a small tax 
had been assessed upon goods brought to market. This was 
the foundation of the first charge. The second, and the real 
ground, was, that the city of London, always on the side 
of the liberties of the people, and opposed to the arbitrary 
extension of the prerogative of the crown, had addressed 



175 

the King against the prorogation of Parliament. " The of- 
fice of judge was at that time held during pleasure; and it 
was impossible that any cause, where the court bent its 
force, could ever be carried against it." If the gentleman 
wishes to know how the pleasure of the crown was signified 
in the instance referred to, he may find it in the book he 
has used, at page — to the following effect: "Memoran- 
dum. That when the demurrer in this case was joined, viz. 
Mic. Term. 34 Car. 2. Mr. Serjeant Pemberton was 
Chief Justice of the King's Bench. But, before Hilary 
Term, that it came to be argued, he was removed, and 
made Chief Justice of the Common Bench, and Sir Edward 
Saunders, who had been counsel for the King in drawing 
and advising the pleadings, was made Chief Justice of the 
King's Bench." The bloody Jefferies was the next Chief 
Justice. Does any gentleman still think this a precedent to 
be offered to our imitation? I will then beg leave to tell 
him further, that this decision took place in the very year 
whose annals are stained with the blood of Russell and of 
Sidney. It is one of the dark and atrocious offences, under 
the forms of justice, committed by a dependent and cor- 
rupted judiciary, at the instigation of the crown, which 
history has long since consigned to distinguished infamy. 
It is one of a series of arbitrary and oppressive acts, which, 
rousing the spirit of a brave and injured people, finally ex- 
pelled the Stuarts from the throne of England, and caused 
the revolution of 16SS. The corporation of London was 
of course condemned, and the King availed himself of the 
decision to grant a new charter, which he took care to adapt 
to his own views, of repressing the spirit of London, and 
curtailing its liberties. All the corporations of England — 
all, guilty or innocent, convinced that if the most powerful 
body of the kingdom had sunk under a contest with a cor- 
rupted judiciary, executing the arbitrary wishes of the 
crown, resistance on their part would be vain, came in, 
surrendered their charters, the security of their rights and 



170 

liberties, and accepted such new charters as the crown 
would condescend to give, paying for the privilege of being 
robbed of their rights such sums of money as the crown 
thought proper to exact. The revolution gave independence 
to the judges. One of the first acts of the government that 
succeeded was to declare this decision illegal and void. 
(2 W. & M. s. 1. c. 8.) By the judiciary it was never re- 
spected, but in all questions afterwards arising, the old 
cbarter was considered as having always continued in force. 
What is the language of modern and sound authority in 
England ? " A judgment of ouster against mayor and alder- 
men does not dissolve a corporation." God forbid, says an 
English judge, that the rights of the innocent should be 
lost and destroyed by the oifence of individuals. "When 
a corporation exists capable of discharging its functions, the 
crown cannot obtrude a new charter upon them." Thus 
repudiated and reprobated in England, thus condemned by 
its history, as well as by its association, are we to adopt 
this precedent? The violation of charters has ever been 
deemed an enormous grievance. It was one of our com- 
plaints against England, and thought worthy to be intro- 
duced into the Declaration of Independence, where it 
stands enumerated among the solemn causes that led to the 
separation. 

I would beg leave to add further, before I examine the 
particular offences imputed, that, where a violation has 
taken place, I cannot conceive that it will work a forfeiture, 
if there be a specific remedy, redress, or penalty. A for- 
feiture in that case is unnecessary. 

I shall touch very briefly upon the several imputed of- 
fences contained in the report, not only because I have 
already trespassed too long, but because the principles I 
have submitted go far to settle them, and also, because they 
have already been fully and satisfactorily answered by a 
member of the committee (Mr. Lowndes.) 

The first of these charges relates to the two millions of 



177 

public debt purchased by the bank for the Commissioners 
of the Sinking Fund. I think it clear, that, in the question 
with the Treasury, the bank was in the right, and the ob- 
vious mode of correcting the error that has occurred, would 
be to pay to the bank the $54,000 lost by passing the stock 
to the commissioners at par. But, no one, I think, after a 
moment's reflection, can hesitate to say, that there has been 
no violation of the charter, and every one will admit that 
if there had been, the government could not complain, 
having been a party, with full knowledge, to the transac- 
tion, and enjoyed all the benefit of it. The object of the 
charter was to prevent the bank from purchasing to keep, 
or to sell, that is to say, purchasing for its own use. It 
purchased in this instance for the Treasury : it passed the 
stock immediately to the commissioners, and all the pecu- 
liarity of the case consists in the simple circumstance, that 
it received from the government 54,000 dollars less than it 
paid. It is needless to spend time on this item, for if there 
had been a violation, there is a remedy for it by the charter, 
to be enforced under the charter, and not by destroying the 
charter. 

The second imputed violation is what relates to the non- 
payment of the coin part of the second instalment. There 
is some apparent confusion upon this subject in the report, 
and there is one plain mistake. It will be necessary to as- 
certain the facts accurately, before we attempt to reason 
upon them. In page 7 of the report it is stated, "that the 
amount of specie in the bank in February, 1817, was 
$1,724,109 ; $324,000 more than the coin part of the first 
instalment, and which may fairly be presumed to have been 
received for the second instalment. " The inference is, that 
only $324,000 in coin had been received for the second in- 
stalment. This seems to be contradicted by the statement 
in page 6. The committee there say, "the loans were to 
be confined to aid the payment of the coin part of the second 
instalment, on the shares which had been subscribed at the 



178 

places where offices were then in operation — New- York, 
Boston, and Baltimore." They then add, that the total 
amount of these loans, at Philadelphia and Baltimore, was 
$33S,250; that at New-York and Boston they were "to a 
very trifling amount, if any ;" and that, in other parts of 
the Union, the coin part of the instalment was paid in coin. 
This view of the committee would prove, that all the coin 
part of the second instalment had been paid in coin, except- 
ing about §338,250. We have, however, the clearest proof 
of the real state of the fact in table V, among the docu- 
ments. 

It appears from that table, that, in February, 1817, there 
were in the vaults of the bank in Philadelphia, Boston, 
New-York, and Baltimore, in specie, exactly what the 
committee state— - §1,724,109 00 

But there were at the same time due from 
the commissioners for receiving subscriptions, 
§8,559,764 95, the coin part of which must 
have been received in coin, and would be 
rather more than 2,000,000 00 



Making together - §3,724,109 00 

The total amount in coin required for the 
second and third instalment, was - 4,200,000 00 



So that the total deficiency arising from 
discounts at Philadelphia, Boston, New-York, 
and Baltimore, did not exceed - - §475,S91 00 

Of which there were in Philadelphia and 
Baltimore §33S,250. 

It thus appears that the amount is much less than seems 
to have been supposed ; that it could not have occasioned 
the necessity of importation "to supply the deficiency the 
evasion had occasioned j" that it could not have injured the 
punctual stockholders, nor materially affected the operations 
of the bank. On the contrary, it may, I think, be assumed 
as probable, that the mere knowledge of the fact, that this 



179 

accommodation might be obtained, kept down the price of 
specie, and really benefited the stockholders, as well as 
contributed to bring about the resumption of specie pay- 
ments. 

But, small as it is, there is a much stronger ground of 
justification. I allude not now to the circumstance, that an 
inquiry was instituted by Congress at the time of these 
transactions, and they not only escaped censure, but ap- 
peared to be approved. That would, and ought to be, an 
answer here, for Congress might then, by interposing, have 
arrested the proceeding. But the necessity, which then jus- 
tified it in the sight of Congress, still affords it a justifica- 
tion. The bank was bound to go into operation on or before 
the first Monday in April, 1817. It was the wish of the 
government, founded upon the exigencies of the public, 
that it should commence much sooner; and, yielding to that 
wish, it did commence, before the second instalment was 
payable. What were its operations? Receiving deposites, 
discounting, issuing paper — each of. which, to a certain 
extent, disabled it to enforce the precise literal terms of 
subscription. They could not refuse to discount for a stock- 
holder, merely because he was a stockholder ; they could 
not refuse to receive their own notes, or checks upon the 
bank, as equivalent to coin. That would have been absurd, 
as they were bound to pay coin for them, and would, be- 
sides, have been a substantive violation of charter. They 
might have refused the notes of state banks. Yes, they 
might, but what would have been the consequence? They 
must have violated the compact that had been entered into, 
and thrown every thing into confusion. I am discussing 
the matter as if it were established that they did receive 
the notes of state banks. It does not appear whether they 
did or not. And, after all, what harm has been do : e ? Is 
the bank in a worse condition, or the public injured? It 
cannot be pretended. 

The third item of complaint is too small, in itself, to 
merit much attention. It appears, (Documents, page 114) 



180 

that dividends to the amount of $ 1460, were paid to four 
stockholders, who had heen in default when the dividends 
were declared. There is an unintentional ambiguity in the 
mode of stating the charge, in the report, which might in- 
duce a belief that the instalment had not been paid at the 
time of paying the dividend. From the documents it will 
be seen, that the instalment was paid, and that interest was 
charged upon it from the time when it became payable. 
The utmost loss that could have been incurred, would have 
been the difference between four per cent, and three per 
cent, for six months ; equal to three hundred and sixty-five 
dollars. It was not, perhaps, so much ; for the interest was 
probably charged up to the time of paying the dividend, 
which was more than six months. Whether these payments 
were made by mistake, or whether there were any peculiar 
circumstances to justify them, does not seem to have been 
inquired into, and cannot be ascertained. But every one 
must be satisfied, that, whether the payment was intentional, 
or whether it was by mistake — whether it was right, or 
whether it was wrong — the consequences cannot extend 
beyond those who were concerned in it. The money might 
perhaps be recovered back, or the officer be charged with it 
as a wrongful payment. It can never forfeit the charter. 

The only remaining article is that which regards the 
elections — particularly the first. This charge is, in substance, 
neither more nor less than that votes were received which 
the committee believe to have been illegal, and that the 
judges of the election, the directors and officers of the bank, 
" perfectly well knew the facts," which, in the opinion of 
the committee, made them illegal. As there were no di- 
rectors till after the first election, I do not see how they 
can be implicated in the charge, so far, at least, as relates 
to that election. But waiving that, and waiving, too, the 
inquiry whether the judges had any right to refuse the 
votes, (a very doubtful matter, to say the least of it) let us 
examine the complaint a little more closely, with a view, 
not to its foundation in fact, but to its legal results. I have 



181 

never understood, nor do I believe, that any number of 
illegal votes will make an election void. There are circum- 
stances that will undoubtedly avoid an election. If an armed 
force, of soldiers, or others, were to surround the polls, and 
by violence, or the menace of violence, prevent the electors 
from voting, or otherwise interfere with the free exercise 
of their franchise, the election ought to be held void. But 
the mere circumstance of illegal votes being received, is of 
no importance, unless the election is contested. And what 
is then the rule? The chairman of the committee of elec- 
tions will answer that question. Where the election is by 
ballot, the illegal votes are all deducted from the majority. 
Suppose there is still a majority, is the election void? No: 
The highest on the return is the person elected. Suppose 
there was no opposing candidate, is the election questiona- 
ble? I believe we have never heard of such a thing. Again, 
sir — Suppose the election not to be contested : the returned 
member takes his seat, and holds it till his term of service 
has expired. Is his right afterwards questionable, or the 
validity of the acts he has done? I have never so under- 
stood it. These are the ordinary rules applicable to such 
cases. How do they apply here? Illegal votes, it is said, 
were received. Was there any opposition, or were all the 
votes, legal and illegal, given for the same ticket? Was 
the election contested? Has not the time for contesting it 
gone by? Supposing it still open to contest, can any one 
inform us how many legal and how many illegal votes were 
given ; or what would be the state of the poll if the illegal 
votes were deducted from the majority? These are matters 
necessary to be ascertained in the first instance, and until 
they are ascertained, at all events the election is good, and 
the acts done under it valid. Even where an election is con- 
tested, the returned candidate takes his seat, and holds it, 
with all its rights, voting and acting, with others, until the 
contest is decided. But, again — Was it ever heard that the 
mere fact of receiving illegal votes at the election of corpo- 
ration officers, was a forfeiture of the charter ? Every cor- 



182 

poration in the United States might tremble if that were 
the law. No ; you may invalidate the election before the 
proper tribunal — you may set it aside. The judiciary may 
inquire into it — may expel those who have been introduced 
by illegal means — may introduce those who have been by 
illegal means kept out. These are the appropriate and all- 
sufficient remedies, which we have frequently seen em- 
ployed, and employed with effect. They apply directly to 
the evil where it is found ; correct that evil, but leave the 
innocent corporation, and the innocent corporators, in the 
enjoyment of their rights, which these remedies are intend- 
ed to preserve, and not to destroy. 

I had intended to have noticed the propositions brought 
forward by the chairman of the committee. It would be 
unpardonable to consume more of the time of the house. 
A single remark upon them, and I have done. Among those 
propositions there are several that would be highly advan- 
tageous to the bank. If they were offered to its free accept- 
ance, perhaps they would be accepted. But, under the 
threat of a scire facias, they ought not to receive a moment's 
consideration. 



( A. ) 

Statement of Public Deposites, from January, 1817, to 
December, ISIS. 

PUBLIC DEPOSITES. 

31st January 1S1 7, - $ 1,147,772 97 

March « ... 11,615,017 62 

30th April « ... 11,345,796 78 

29th July " ... 24,746,641 26 

31st October " ... 7,743,S99 74 

9th July 1818, - - - 7.967,775 14 

1st Dec'r " ... 6,069,975 15 

PUBLIC DEBT REDEEMED. 

31st July 1817, - - - $13,398,43S 02 



183 



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SPEECH, 



ON THE MISSOURI QUESTION, DELIVERED IN THE HOUSE 
OF REPRESENTATIVES OF THE UNITED STATES, ON THE 
8TH AND 9TH OF FEBRUARY, 1820. 

This speech was delivered while the House of Representatives was in com- 
mittee of the whole, on the bill for the admission of Missouri into the 
union. The debate in committee commenced on the 26th January, 1820, 
on the following amendment, proposed by Mr. Taylor of New York, to 
the bill : " And shall ordain and establish that there shall be neither slavery 
nor involuntary servitude in the said state, otherwise than in the punish- 
ment of crimes whereof the party shall have been duly convicted. Pro- 
vided always, that any person escaping into the same, from whom labour 
or service is lawfully claimed in any other state, such fugitive may be law- 
fully reclaimed and conveyed to the person claiming his or her labour or 
service as aforesaid. And provided also, that the said provision shall not 
be construed to alter the condition or civil rights of any person now held to 
service or labour in the said territory." 

MR. CHAIRMAN, 

The important question now before the committee, 
has already engaged the best talents, and commanded the 
deepest attention of the nation. What the people strongly 
feel, it is natural that they should freely express ; and 
whether this is done by pamphlets and essays, by the re- 
solutions of meetings of citizens, or by the votes of state 
legislatures, it is equally legitimate, and entitled to respect, 
as the voice of the public, upon a great and interesting 
public measure. The free expression of opinion, is one of 
the rights guaranteed by the constitution, and in a govern- 
ment like ours, it is an invaluable right. It has not, there- 
fore, been without some surprize and concern, that I have 
heard it complained of, and even censured in this debate. 

24 



186 

One member suggests to us, that in the excitement which 
prevails, he discerns the efforts of what he has termed an 
" expiring party," aiming to re-establish itself in the pos- 
session of power, and has spoken of a "juggler behind the 
scene." He surely has not reflected upon the magnitude 
of the principle contended for, or he would have perceived 
at once the utter insignificance of all objects of factious and 
party contest, when compared with the mighty interests it 
involves. It concerns ages to come, and millions to be 
born. We, who are here, our dissentions and conflicts, 
are nothing, absolutely nothing, in the comparison : and I 
cannot well conceive, that any man who is capable of 
raising his view to the elevation of this great question, 
could suddenly bring it down to the low and paltry consi- 
deration of party interests and party motives. 

Another member, (Mr. M'Lane) taking indeed a more 
liberal ground, has warned us against ambitious and de- 
signing men, who, he thinks, will always be ready to avail 
themselves of occasions of popular excitement, to mount 
into power upon the ruin of our government, and the de- 
struction of our liberties. Sir, I am not afraid of what is 
called popular excitement — all history teaches us, that 
revolutions are not the work of men, but of time and cir- 
cumstances, and a long train of preparation. Men do not 
produce them : they are brought on by corruption — they 
are generated in the quiet and stillness of apathy, and to 
my mind, nothing could present a more frightful indication, 
than public indifference to such a question as this. It is 
not by vigorously maintaining great moral and political 
principles, in their purity, that we incur the danger. If 
gentlemen are sincerely desirous to perpetuate the bless- 
ings of that free constitution under which we live, I would 
advise them to apply their exertions to the preservation of 
public and private virtue, upon which its existence, I had 
almost said, entirely depends. As long as this is preserved, 
we have nothing to fear. When this shall be lost, when 



187 

luxury and vice and corruption, shall have usurped its 
place, then, indeed, a government resting upon the people 
for its support, must totter and decay, or yield to the de- 
signs of ambitious and aspiring men. 

Another member, the gentleman to whom the committee 
lately listened with so much attention, (Mr. Clay,) after 
depicting forcibly and eloquently, what he deemed the 
probable consequences of the proposed amendment, ap- 
pealed emphatically to Pennsylvania ; " the unambitious 
Pennsylvania, the keystone of the federal arch," whether 
she would concur in a measure calculated to disturb the 
peace of the union. Sir, this w r as a single arch ; it is ra- 
pidly becoming a combination of arches, and where the 
centre now is, whether in Kentucky or Pennsylvania, or 
where at any given time it will be, might be very difficult 
to tell. Pennsylvania may indeed be styled " unambitious," 
for she has not been anxious for what are commonly deem- 
ed honours and distinctions, nor eager to display her weight 
and importance in the affairs of the nation. She has, 
nevertheless, felt, and still does feel, her responsibility to 
the union, and under a just sense of her duty, has always 
been faithful to its interests, — under every vicissitude, and 
in every exigency. But Pennsylvania feels also a high 
responsibility to a great moral principle, which she has long 
ago adopted with the most impressive solemnity, for the 
rule of her own conduct, and which she stands bound to 
assert and maintain, wherever her influence and power 
can be applied, without injury to the just rights of her sis- 
ter states. — It is this principle, and this alone, that now 
governs her conduct. She holds it too sacred to suffer it to 
be debased by association with any party or factious views, 
and she will pursue it with the singleness of heart, and with 
the firm but unoffending temper which belong to a con- 
scientious discharge of duty, and which, I hope I may say, 
have characterized her conduct in all her relations. If any 
one desire to know what this principle is, he shall hear it in 



188 

the language of Pennsylvania herself, as contained in the 
preamble to her act of abolition, passed in the year 1780. 
I read it not without feelings of sincere satisfaction, as 
abridged by a foreign writer, with his introductory remark. 
(2 Belsham, 23, Memoirs of Geo. 3.) 

" It affords a grateful relief from the sensations which 
oppress the mind in listening to the talc of human folly and 
wretchedness, to revert to an act of the most exalted 
philanthropy passed about this period by the legislature of 
Pennsylvania, to the following purport:" "When we con- 
template our abhorrence of that condition, to which the 
arms and tyranny of Great Britian were exerted to reduce 
us, when we look back on the variety of dangers to which 
we have been exposed, and deliverances wrought, when 
even hope and fortitude have become unequal to the con- 
flict, we conceive it to be our duty, and rejoice that it is in 
our power, to extend a portion of that freedom to others 
which hath been extended to us, to add one more step to 
universal civilization, by removing, as much as possible, 
the sorrows of those who have lived in undeserved bondage. 
Weaned by a long course of experience from those narrow 
prejudices and partialities we had imbibed, we conceive 
ourselves at this particular period, called upon, by the 
blessings we have received, to manifest the sincerity of 
our profession. In justice, therefore, to persons who having 
no prospect before them, whereon they may rest their 
sorrows and their hopes, have no reasonable inducement 
to render that service to society which otherwise they 
might ; and also in grateful commemoration of our own 
happy deliverance from that state of unconditional sub- 
mission to which we were doomed by the tyranny of 
Britian. Be it enacted, that no child born hereafter shall 
be a slave, etc." In this manner did Pennsylvania 
express her thankfulness for the deliverance that had been 
wrought for her, and 1 am confident she will never incur 
the sin and the danger of ingratitude. 



189 

Stedfastly as Pennsylvania holds the position here taken, 
she will not officiously obtrude her opinions upon her 
sister states. One of the grounds of her rejoicing, and one 
of the causes of her gratitude, was, that "she had it in 
her power to abolish slavery." She will not in this respect 
presume to judge for others, though she will rejoice if they 
too should have the power and feel the inclination. But, 
whenever the question presents itself, in a case where she 
has a right to judge, I trust she will be true to her own 
principles, and do her duty. Such I take to be the case 
now before the committee. 

The proposed amendment presents for consideration 
three questions : that of the constitutional power of congress, 
that which arises out of the treaty of cession, and, finally, 
that which is termed the question of expediency. I beg 
the indulgence of the committee while I endeavour to 
examine them in the order stated. 

1. We are about to lay the foundation of a new state, 
beyond the Mississippi, and to admit that state into the 
Union. The proposition contained in the amendment is in 
substance to enter into a compact with the new state, at 
her formation, which shall establish a fundamental princi- 
ple of her government, not to be changed without the con- 
sent of both parties ; and this principle is, that every human 
being born or hereafter brought within the State, shall be 
free. 

The only questions under the constitution, seem to me 
to be, whether the parties are competent to make a com- 
pact, and whether they can make such a compact 1 If 
they cannot, it must be either, for want of power in the 
parties to contract, or from the nature of the subject. 

It cannot, at this time of day, be denied, that the United 
States have power to contract with a state, nor that a state 
has power to contract with the United States. It has 
been the uniform and undisputed practice, hoth before and 
since the adoption of the constitution. There are numer- 



190 

ous instances of cessions of territory, or claims to territory, 
by states, to the Union. By New York in 1781 ; by Virginia 
in 1784 and in 1788; by Massachusetts in 1785; by Con- 
necticut in 1786; by South Carolina in 1787; by North 
Carolina in 1790 ; and by Georgia in 1802. The last men- 
tioned cession is the more remarkable, because it was made 
by a formal argeement between the United States and Geor- 
gia, in which the stipulations on each side are stated in the 
same manner and with the like solemnity, as in contracts 
with individuals. No doubt they were considered to be, 
and really are, of equal efficacy. 

There is one instance, of a cession of territory by the 
United States to a state, that to Pennsylvania, in September 
1788, in which also there are mutual stipulations. 

Each of these instances, is a case of mutual compact, 
by which there was a surrender of a portion of power and 
sovereignty, on the part of the respective states; by which, 
too, there were terms mutually agreed upon. The most 
striking is that from Virginia, which I shall have occasion 
to refer hereafter, and that from Georgia, because they 
both contain conditions operating as a restraint upon the 
legislative authority of the United States, binding and 
adhering to the ceded territory, and fixing the terms and 
conditions of its future government. So, when the United 
States, soon after the state of Louisiana was admitted into 
the Union, enlarged the territory of the state by a cession, 
it was done upon conditions, which thenceforth became 
obligatory upon the state. 

These instances are sufficient to show that the United 
States, and a state, are competent to make a binding com- 
pact. Indeed it is impossible that any man should doubt 
it. The states have capacity to contract with each other, 
so far as they are not restrained by the constitution. In 
1785 a compact was made between Pennsylvania and 
Virginia. There was a compact between Pennsylvania and 
New-Jersey, and between South Carolina and Georgia. 



191 

The only restraint in the constitution (art. 1. sec. 10. 
clause 2.) is that which prohibits states from entering into 
any agreement or compact with each other, or with a 
foreign power, without the consent of congress ; and this 
prohibition, from its very nature admits, that they may 
enter into such compacts or agreements with the United 
States. 

The states have a capacity to contract even with indi- 
viduals, and in so doing to part with a portion of their 
legislative power. This is the case wherever a charter 
of incorporation is granted, by which rights of property 
become vested. During the period of the charter, the 
subject is beyond the control of the legislative authority, 
which is so far suspended or extinguished by the grant. 
The United States have done the same thing, and with'the 
like effect. 

If it be competent to the United States to contract with 
an old State, it seems to follow of course, that it has a com- 
petency to contract with a new one. The admission of 
the state is itself a compact, as the constitution of the 
United States was a compact between the existing states, 
and it would be difficult to assign any good reason, why 
upon the admission of a new state to a participation in the 
privileges and benefits of t\e Union, such terms might not 
be proposed and insisted upon as the general welfare 
should seem to require. As the stipulation, whatever it 
may be, derives its binding efficacy from the assent of the 
state, which its_ sovereignty, or qualified sovereignty, ena- 
bles it to give, a new state is as competent as an old one. 
Indeed, the possession and the exercise of this power are 
necessary to enable the United States to execute the con- 
tracts they may enter into, with any state of the Union, 
upon receiving from it a cession of territory, wherever 
such cession is accompanied, as it usually has been, with 
terms upon the part of the ceding state, applying to and 
intended to bind the territory ceded. 



192 

Accordingly, no new state (unless formed out of an old 
one) has ever been admitted into the Union, but upon terms 
agreed upon by compact, and irrevocable without the 
consent of all the parties. The states formed out of the 
North-West Territory, (Ohio, Indiana, and Illinois,) have 
been made subject, as a fundamental law of their govern- 
ment, to the terms of the ordinance of 1787, including the 
very condition now proposed for Missouri. The states of 
Mississippi and Alabama, formed out of the territory ceded 
by Georgia, have been subjected to all the provisions of the 
ordinance, except the one which regards slavery, and that 
was expressly excluded by the terms of the cession. The 
state of Louisiana, the only one yet formed out of the ter- 
ritory acquired from Fiance, has been in like manner 
admitted upon terms; different it is true, from those which 
have been required from the other states, but still such 
terms as congress thought applicable to her situation, and 
such as are sufficient to demonstrate the extent of the 
authority possessed by the United .States. Even in the 
bill now under consideration, certain propositions, as they 
are styled, are offered to the free acceptance of Missouri, 
but if accepted, they are to be forever binding upon her. 

Thus, it appears, that a new state may contract ; and it 
is essential that it should be so, for her own sake as well 
as for the sake of the union. It remains, then, to inquire, 
whether the stipulation proposed in the amendment, is, on 
account of the nature of the subject, such an one as it is 
beyond the power of a state to enter into ! It has already 
been remarked, that a state, at the moment of its forma- 
tion, is as entirely sovereign, and as capable of making a 
binding contract, as at any future period, i The real ques- 
tion, therefore, is, whether it is beyond the power of any 
state in this union, for any consideration whatever, to bind 
itself by a compact with a state, or with the United States, 
to prohibit slavery within its borders? To suppose so, 
seems to impute a want of sovereign power, which could 



193 

only arise from its being parted with by the constitution, 
and this I think can • be affirmed. But I do not 

mean to anti t at present is to follow the 

practice of the government. 

In this view, the ordinance of 1787, respecting the Nbrth- 
West Territory, and the history of the states formed under 
it, are eminently deserving of consideration and respect. 
This ordinance was framed upon great deliberation. It 
was intended to regulate tl nment of the territory; 

to provide for its division inl . and lor their admission 

the union ; and to establish certain great princ 
which should become the fundamental law of the states to 
he formed. In its territorial condition, it wj ct to 

the exclusive jurisdiction of congress, to b ed by 

the ordinary process of legislation. But it v of the 

terms of the cession by Vi. . I States, that 

this territory, as it became peopled, should he divided into 
states, and that these states should be admitted into the 
union, '•' upon an equal footing, in all respects, with the 
original states." We shall I the fulfilment of 

this effected. After providing va the 

territorial government, the ordinance pr< 

nding the fundamental pri- i I civil and 
religious. bich form the ba these re- 

s, theii itions are erected: to fix 

and establish those principles as the basis of all laws, con- 
stitutions and governments, which forever hereafter shall 
.-Tied in the said territory; to provide, also, foi 
lishment .and pen government there- 

in, and for their admission to a share in the federal councils 
on an equal fc _ early 

at may be tent with the general intei 

It is hereby ordained and declared, t . arti- 

cles shall be • of comt 

the c: _ people and . i the said 

territory) 3J&dforever remain unalterable n common 

25 



191 

consent" Then follow the several articles, of which the 
sixth declares, " that there shall be neither slavery nor 
involuntary servitude, dec." The fifth article provides ex- 
pressly, that " the constitution and government (of the 
states) so to be formed, should be republican, and in con- 
formity to the principles contained in these articles." When 
the states of Ohio, Indiana, and Illinois, respectively, ap- 
plied for admission, they were admitted upon the express 
condition that their constitutions should be republican, and 
in conformity to the ordinance of 1787. They assented to 
the condition, and were admitted " upon an equal footing 
with the original states." 

1 am aware that all this has been pronounced, rashly I 
think, to be an usurpation. The term does not well apply, 
at this time of day, after the repeated sanction of every 
kind which the ordinance has received. In truth, if there 
be any thing in our legislative history, which is entitled to 
our affection for the motives in which it originated; to our 
veneration for the authority by which it is supported; to 
our respect for the principles embodied in it, it is the or- 
dinance of 1787. But the charge of usurpation is in 
every sense inapplicable, for the efficacy of the contract 
arises from the assent of the state to the conditions proposed 
as the terms of her admission. 

But this ordinance is entitled to still higher consideration. 
It was a solemn compact between the existing states, and it 
cannot be doubted, tha*t its adoption had a great influence 
in bringing about the good understanding that finally pre- 
vailed in the convention, upon several points which had 
been attended with the greatest difficulty. ' It passed on 
the 13th July, 1787, while the convention that framed the 
constitution was in session. From the minutes of that 
body, lately published, it will be seen, that the two most 
important and difficult points to adjust, were those of the 
admission of states, and the slave representation. This 
ordinance finally adjusted both these matters, as far as con 



195 

eerned all the territories then belonging to the United 
States, and was therefore eminently calculated to quiet the 
minds of the advocates of freedom ; to remove their objec- 
tions to the principle of slave representation, and to secure 
their assent to the instrument which contained that prin- 
ciple, by limiting its operation to the existing states. It is 
not to be questioned, that this ordinance, unanimously 
adopted, and, as it were, fixing an unchangeable basis by 
common consent, had a most powerful influence in bringing 
about the adoption of the constitution. It is a part of the ! 
groundwork of the constitution itself; one of the prelimi- < 
nary measures upon which it was founded. Hence the 
unusual solemnity of the terms in which it is conceived, so | 
different from the ordinary forms of legislation, and which 
give to it the character of a binding and irrevocable cove- 
nant. 

Such, then, is the power that has always been exercised 
by congress, upon the admission of new states into the 
union, and exercised without dispute. Whence was it 
derived ? It was exercised, as we have seen, immedi- 
ately before the adoption of the constitution, while that 
instrument was under consideration, and recognized imme- 
diately after, by the act of the first congress, supplementary 
to the ordinance. Nothing can be more clear, than that if 
the ordinance of 1787 was inconsistent with the constitu- 
tion, it was repealed by that instrument. If the conven- 
tion had meant to repeal it, they would have done so. It 
was directly in their view, and embraced a subject which 
was earnestly and carefully treated by that body. And yet, 
immediately after, when the same men who had framed 
the constitution, and knew its intention, were many of them 
members of congress, the supplement to the ordinance was 
adopted. That was not a time, you may be assured, for 
stretching the federal power. The greatest jealousy pre- 
vailed, and the friends of the constitution were obliged to 
observe the utmost caution, while it was slowly winning its 



190 

way to the public favour, refuting the suggestions of its 
enemies, and settling clown, gradually but firmly, upon the 
solid foundation of ascertained public benefit. 

In what part of the constitution is this power conferred? 
It is conferred by that provision which authorizes congress 
to admit new states into the union ; and to me it seems 
perfectly plain, that we need look no further for it. There 
are other parts of the constitution which have a bearing 
upon the question, because they apply to the subject upon 
which it is proposed to exercise the power, and may very 
well be used for the purpose of illustration or of argument. 
This use of them affords no just occasion for the remark, 
which has been so triumphantly made, that the friends of 
the restriction differ among themselves, as to the part of 
the constitution from which the power to impose it is de- 
rived. They do not differ. But, as upon every other 
question of constitutional power, they naturally resort for 
information to all the provisions of the constitution, which 
have relation to the matter in discussion. 

The power to admit new states is given to congress in 
general terms, without restriction or qualification, and upon 
every just principle of construction, must lie understood to 
confer whatever authority is necessary for carrying the 
power into effect, and every authority which in practice 
had become incident to the principal power, or was deemed 
to make a part of it. 

Of late it has been the. fashion to insist upon a liberal 
construction of the constitution, and its most extensive 
efficacy has been found in the implied powers it is supposed 
to confer. All powers are implied that are necessary for 
the execution of the enumerated powers, and the necessity 
need not be absolute ; a modified necessity or high degree 
of expediency is sufficient. Whence the authority to in- 
corporate a bank ? Whence the authority to apply the 
public treasure to the improvement of the country by roads 
and canals ? Whence the authority to encourage domestic 



197 

istry by bounties and prohibitions? Whence the 
authority to purchase and to govern the territory now in 
question ! J- it to I)': found in the letter of the constitu- 
tion ! They all r< st upon this single position, that an ori- 
ginal power having been granted, every other power is 
implied which is necessary or useful for carrying that p 
into execution — and this is an inherent essential principle 
of the constitution, altogether independent of if.-, express 
words. 

But the power in question rtr-u upon stronger ground 
than this. The constitution of the United States, though 
i r i form the work of the people (who made it. their own by 
adoption) was i act between states. It was made 
' hoscn by the states. The votes in the con- 
vention • en by states. It was submitted to the 
; their ratification: and, il ' • tence depended 
upon the sanction of a certain number of the si 
"i'ir >■ states were sovereign, but confederated by a slight 
and insufficient union, incapable from I pro- 
viding for the common welfare, Their sovereignty extend- 
ed to hin their limits, and to every thing 

. but the !"• w powers (if they deserve to be so denomi- 
nated) which wer< i d to the congress of the union. 
Nevertheless it was a confederation, which comprehended 
.-ill who were parti'- to it, arid excluded all others. Was 
there a power in this confederacy to admit new members / 
It cannot be doubted. To whom was that power confided. 
The- express provision in the articles of confederation, 
which has been quoted and relied upon in opposition to the 
power contended for, has no relation to the subject of new 
states, to be formed and admitted from the territory of the 
United States. It was an invitation to Canada arid the 
r British colonies in America to join us in resistance to 
the common enemy, and if they had accepted the invitation, 
they would have come into the confederation upon the 
terms only of making common cause with us. But there 



198 

was a power, independently of this provision, to admit new 
members. That is clear from its exercise — and that 
power was exercised by the states in congress. When 
Virginia, in 1780, ceded to the United States her claim to 
the North West Territory, it was upon condition that the 
territory should be formed into states, and that these states 
should be admitted upon an equal footing with the original 
states. Congress accepted the cession upon that condition, 
and proceeded to fulfil it by the ordinance of 1787. 

The extent of the power, the mode of its exercise, and 
the incidents belonging to it, were also determined by the 
practice of our Government. Among these incidents was 
that of making terms, conditions or corn-pacts, with the 
states admitted : and so inseparably incident was this 
deemed to be, that when Virginia stipulated for the admis- 
sion of the states upon an equal footing with the original 
states, that stipulation was understood to be fully complied 
with, by admitting them upon terms. It is not at all ma- 
terial to the present purpose, to inquire, whether the 
ordinance of 1787 was or was not an usurpation. If there 
was any authority usurped, it was that of admitting the 
states, the principal power itself, not the incidents. V It is 
sufficient that in point of fact, the power of admitting new 
states was exercised, and was understood from its exercise 
to include in it the power of proposing terms, conditions or 
stipulations, and, among them the very condition now in 
question. 

When the power of admitting new states into the union, 
was vested by the constitution, without limitation, in the 
congress of the United States, was it not intended to carry 
with it whatever in practice had been established to be an 
incident of the power, or a part of the power 1 Where was 
the residue lodged ? Not with the states ; for the states 
as such, have no longer a voice in the union, except for the 
purpose of amending the constitution. Not with the 
people ; for the people have no voice, but through their 



199 

representatives in congress. The matter resolves itself at 
last into this single question : Did the people of the United 
States, when they framed their constitution, mean to give 
up and forever relinquish the power of proposing terms, or 
did they deposit it with their own immediate agents, 
chosen by themselves ? They had always found terms of 
some sort beneficial and necessary, and they have been 
necessary and expedient in every instance since the consti- 
tution was formed, so that, with the exception of Vermont, 
not a single state has ever been admitted into the union 
but upon conditions agreed to by compact. Who are the 
congress of the United States ; by whom are they chosen ; 
who do they represent? The people of the existing states. 
Who is it claims to be admitted into the confederacy, and 
to participate in the benefits of the union ? An alien, as 
yet, one who has no right of admission, whom the people 
of these United States, as a political association, may at 
their pleasure reject. Can it be supposed, that by framing 
a constitution of government for themselves, the people of 
the United States meant to destroy forever their own in- 
herent right of prescribing terms and conditions of admis- 
sion ? And yet this is the obvious result of the argument, 
for as it denies the power to congress, and it cannot be 
exercised by the states or the people, it is forever gone. 
In what part of the constitution do you find any coun- 
tenance for such a conclusion 1 There are limits, it is true, 
to the powers of congress, but those limits are the boun- 
daries which separate the rights of the union from those of 
the states and the people. Is there any power denied to 
congress which is not reserved to the states or the people? 
Was any power intended to be denied to them, in its nature 
fit and proper to be exercised, but which could not be 
exercised by the states or the people ? 

Besides, if this power was, in its exercise, to be merely 
ministerial, why was it confided to congress, the highest 
legislative authority of the nation, entrusted with the care 



200 

of all its most important concerns? It is derogatory to the 
character of congress, and altogether inconsistent with the 
general tenor of its high duties, to suppose, that it shall he 
required to perform an office so humiliating. One gentle- 
man tells us, that Missouri has a right (o he admitted, and 
will assert her right. What is this hut to say, she will 
knock at the door, because it is civil to do so, but if it be 
not immediately opened, she will break it down and come 
in by force. Another gentleman has told us of a citizen of 
Missouri, who said, that rather than submit to the restric- 
tion, he would shoulder his musket against the United 
States. Such intimations have no other effect than to 
create a very reasonable doubt whether Missouri is yet fit 
to be admitted. Admission presupposes the existence in 
the new territory of principles and feelings somewhat like 
those which govern other parts of this union, and those are 
feelings of submission and respect for the constitution and 
laws, and the authority exercised under them. If we have 
no right to impose the condition, there is an end of the 
question : but if we have a right, and it is deemed expedi- 
ent to exercise it, I trust the congress of the United States 
arc not to be frightened from their purpose by threats like 
these. What becomes of the union, which gentlemen 
express so much anxiety to preserve, if it cannot assert and 
maintain its rightful authority, even against a territory, 
without the original limits of the United States, only very 
lately acquired, and with a population who have scarcely 
had time to become acquainted with each other ? Such 
an union could hardly be worth preserving. Why, sir, 
when Virginia brought her eldest daughter Kentucky, 
trained up in the habits and affections of her parent to an 
age when she was fit to be introduced into the society of 
the union, and offered her as an associate fit to be received, 
congress, it is admitted, had a right to receive or to reject 
her. But when a state, formed out of an alien territory, and 
having had no paternity but that of congress, offers herself 



201 

for admission, she may demand and insist upon being re- 
ceived. And docs Missouri deem so lightly of the privilege 
of belonging to tins union, that she would rather forego it 
than make a slight sacrifice of a seeming advantage, or 
that she would hazard it for the sake of asserting her own 
opinion in opposition to that of congress ? I cannot believe, 
that upon reflection she will adopt any such course. If 
she should, it will be time enough then to consider how 
the authorit}' of the union is to be maintained. 

I have said that it is derogatory to the authority of con- 
gress, and wholly inconsistent with the tenor of its high 
duties and capacities, to suppose that it is merely to per- 
form the humble ministerial office of opening the door, upon 
demand, for the admission of a state, without any discre- 
tion whatever, f No instance can be found, where the 
constitution has assigned to the legislative power the per- 
formance of such a duty. Thus construed, it is not a power 
at all. The cases that have been put are in no respect 
analogous. The power of congress, upon the death of the 
President and Vice President, to declare what officer shall 
act as President of the United States, is a very high power, 
involving in its exercise much discretion, a discretion com- 
mensurate with the various and important trusts confided 
to the chief magistrate. It can with no propriety be said 
to be ministerial, and its being deposited with congress, is 
the strongest proof of the confidence reposed in that body. 
The office of counting the ballots, upon the election of pre- 
sident and vice president, simple as it may seem, and easy 
as in ordinary cases it is, is nevertheless an office of impor- 
tant trust, and including some judicial discretion, as well as 
a most serious responsibility. It is a (it office to be exe- 
cuted by the highest bod} in the nation. The power of 
impeachment is not a ministerial, but a judicial power, and 
it belongs not to congress, but to a single branch. The 
same remark applies, with equal force, to the right which 
each branch possesses of judging of the elections and rc- 

26 



2()*J 

(urns of its members, a judicial power, incident i<> every 
body composed of elected delegates, and one of its inherent 
privileges. In all these cases, however, if may not be amiss 
to observe, that the constitution gives only the principal 
power. The incidental powers, such as sending for persons 
and papers, enforcing the attendance of witnesses^ and the 
like, are implied from the principal grant. 

Thai construction which supposes that congress have a 
power indeed to admit or to reject, but simply to admit or 
to reject, seems to me (though it might be sufficient for the 
present case) to refleci upon the wisdom of the framers of 
the constitution. The objection to the admission of a stale 
may arise, from something not in its nature insuperable, but 
which might be removed by compact <>r by accepting a 
condition. Would it not be Worse than idle to say, that in 
such a case, the stale must be rejected, for waul, of a power 
on the one side to propose, and on the other to agree to 

certain terms of compact? In truth, as will be shown 
more fully hereafter, such a discretion in congress is essen- 
tially necessary to the just exercise of the power of admis- 
sion, not oul) on account of the union, but also of the states 
to be admitted. 

The gentleman from Delaware has indeed argued, that 
the power given is to ".admit" not to " form or create" a 
slate, and therefore congress have no power to interfere in 
the formation. This only brings us back to the inquiry, 

what is meant by the word "admit?" It lias always been 
understood that congress have a right, and are in duty 
bound, to superintend the formation of a state, and to see 
that it is properly formed. The terms of the very bill now 
on your table (following the usual phraseology) " authorize" 
the people of Missouri to form a constitution of state go- 
vernment preparatory to their admission. 

But, antecedently to the constitution itself, the states 
then existing had prescribed certain terms or conditions to 
the states to be formed out of the K. W. Territory. If con- 



203 

have no pow< r but to admit or to reject, the territory 
by the constitution liberated from i 1 
• of authority to impose them. There might be a 
'.on indeed, whether the territory ha i not reverted to 
whi< h ceded it, in consequence of the i 
of congref - to fulfil the i tipu 

J beg leave then to return to the question — the incidents 
to this power being quite as important as thepo 
the power being worse than worthless without them, did 
the people of the United States, in fran ution 

of government for then itend to d 

tripping it of 'ho i re it all it-, value? 

Did they mean to pr< application to 

which they had then itl And foi 

purpos< ! Better, far better would it hi . that no 

rat all should have b* . to congress, than that 

they should thus ho required, oil hoi- blindly to admi 
sullenly to reject The design of the constitute 
to abridge, hut to enlarge and strengthen the powers of the 
federal government, and it would be font 

with the general plan, to suppose, that in ;• matter which 
j-. properly of national concern, it had denied tocongn 
portion of pow< i which had been actually and beneficially 
exercised under the confederation. We should naturally 
' i to find it where it was deposited before- / think it 
is accordingly there deposited, with all its establi 
incidents, among which is that now in question. 

This power i- not now asserted for tho first time under 
the constitution. It has always been 
Then tate admitted; except Vermont, 

without conditions which surrendered a portion of J< . 
tive authority more 01 less exteo ive. Kentucky 
into stipulations with Virgil g them was one by 

which she bound herself for five the lands 

of non-residents higher than those of residents, and ; 
to tax the lands of non-residents who should reside in V'ir- 



204 

ginia, higher than those of residents. This is a perpetual 
restraint upon her power of legislation, but it is no diminu- 
tion of her sovereignty. The states of Ohio, Indiana, and 
Illinois, by compact with the United States, are under a 
perpetual incapacity to permit slavery within their limits. 
This is no derogation from their just sovereignty, nor does 
any man imagine that it impairs their character or lessens 
their weight in the union. Alabama, Mississippi, and 
Louisiana, too, have come in upon conditions imposed by 
congress at the time of their admission. In every such 
instance, the stales have been deemed to be, and have in 
fact been, admitted upon an equal footing with the original 
states. The uniform exertion of this authority for such a 
length of time, is not to be regarded merely as furnishing 
ns with so many precedents, entitled to more or less 
consideration according to circumstances. There must be 
a time after which the practical construction of the consti- 
tution, universally understood", and adopted and acquiesced 
in by the people, especially in matters of great public 
concern, is to be deemed the true construction, and placed 
beyond the reach of dispute or controversy. Shall we now 
undo all that has been done for above thirty years, and 
done with the common consent 1 Shall we reject as erro- 
neous the interpretation that has been without exception 
put upon the constitution from the time of its adoption? 
It is due to the constitution itself, that it should not be 
be exposed to treatment which must weaken its claim to 
the public confidence and respect. It is due to the people, 
whose constitution it is, that what it has always been 
understood in practice to be, it shall continue to be, until 
they may think proper to change its provisions. 

But here we arc met by an objection, which seems to be 
considered by those who present it as of great force. If 
one condition may be proposed, why not another, and 
another, without limit, to the entire annihilation of all the 
rights of the state ? This argument, though pressed with 



205 

a sort of triumph, as if it were completely unanswerable, 
can scarcely be said to be even plausible. The possible 
abuse of power can never be urged to show that a power 
does not exist, or that it is not upon the whole salutary and 
proper ; for if admitted at all, it proves by far too much, as it 
is equallv available against every grant of power. In the 
formation of government, the first inquiry must be, what au- 
thority is fit and necessary to be delegated, and then we are 
to inquire to whom it shall be confided, and what security 
can be provided against its faithless exercise 'I All authority 
is exposed to the danger of abuse, for it is administered by 
men. Government has been said, by a once celebrated 
popular writer, to be itself an evil, inasmuch as its necessity 
arises from the vices and weakness of our nature. But the 
constitution has provided with the greatest care against the 
abuse of power, by making every public agent in some way 
accountable for his conduct, and by conferring the highest 
powers upon those who are immediately responsible to the 
people ; and as long as the people shall continue to be faith- 
ful to themselves, so long the check will continue to be 
effectual. This is the great security, and it depends upon 
the virtue and intelligence of the people. No government 
ever afforded the same degree of protection, with so little 
burthen, and if we had not been most vehemently censured 
abroad for speaking well of ourselves, I would add, that 
there is probably no other people upon earth who could be 
kept quiet by so light a pressure. The government and 
the people are suited to each other. Long may they con- 
tinue so. 

The congress of the United States, the immediate repre- 
sentatives of the people, and immediately accountable to 
the people, are the fit depositories of such a power as that 
now claimed, for it concerns the general welfare. They 
have no motive to abuse it ; and if they were so inclined, 
they cannot abuse it, because they have no power to im- 
pose the condition. The state may, at her pleasure, reject 



206 

the offer, and remain in her territorial condition, where she 
will be subject to the unqualified power of congress. 

It must be manifest to every one who has reflected upon 
the subject, that there are terms which are obviously salu- 
tary and proper, and necessary to be proposed upon the 
admission of a slate. When Louisiana asked to come into 
the union, did any one doubt, that it was right to require, 
that her legislative and judicial proceedings should no lon- 
ger be carried on in a language unintelligible to the other 
citizens of the United States, without the aid of an inter- 
preter ? There are terms, too, which would be manifestly 
improper, and there are terms, I freely acknowledge, which 
would be incompatible with the constitution. There must 
be a discretion somewhere, to judge between the two first 
classes. Our government would be incomplete without it. 
Where can the power be so safely lodged as with the con- 
gress of the United Slates, to decide what terms the general 
interests require to be proposed? They have never yet 
abused it, and I think there is no danger that they ever 
will. But where do the opponents of the amendment pro- 
pose to lodge the power? Leave the state free, it is said; 
let her adopt such a plan of government as best suits her 
own circumstances. And is there no danger to be appre- 
hended from that quarter ? Supposing her to be compe- 
tent to judge what is best for herself,, or most for her own 
advantage, (of which, if she desire slaves, I must be per- 
mitted to doubt,) yet, as she claims to become a member of 
this union, the general interests are involved in her deci- 
sion, and her views may not be those which best comport 
with the public welfare. Of that she is not in any sense 
as competent to judge as those who are entrusted with the 
care of the concerns of the whole. 

Is it too much then to say, that the right to judge of 
terms which are not incompatible with the constitution, 
belongs to the union, and to congress as the admitting 
power 1 It is essential that it should be so, for the sake 



207 

even of the state applying for admission. I have immedi- 
ately at hand an illustration, and if I mistake not, a most 
cogent argument, to which I invite the particular attention 
of the delegate from Missouri. I feel nothing but good will 
for that gentleman, and nothing but good will for his con- 
stituents, whom he represents here with so much zeal 
and ability ; and I submit this matter for his and their 
consideration. It is not to be denied that congress have 
the power to fix the limits of the state, and that they are 
not obliged to give her all the territory comprehended in 
the boundaries stated in the bill. This is entirely within 
their control. Suppose congress should be of opinion, that 
if Missouri is to be a sla-ve state, her northern boundary 
ought to be the river, cutting off the large and fertile tract 
of country that lies beyond it : but, if she will adopt the 
proposition of the amendment, she ought to have for her 
domain the whole territory within her present limits. Might 
not congress propose to her the alternative, take the re- 
striction and you shall have all the territory ; reject the 
restriction and you shall not go beyond the river ? Some- 
thing of this kind is very likely to happen, and it may here- 
after appear that Missouri is contending for a principle 
that will operate much to her disadvantage. For my own 
part — and I speak only for myself — I most freely and sin- 
cerely declare, that if the restriction be not agreed to, I 
will vote for reducing Missouri to the smallest limits that 
are consistent with the character of a state. If the re- 
striction be agreed to, I will vote for giving her such boun- 
daries as will secure her grandeur and comparative impor- 
tance. 

From the view which I have now endeavoured to take, 
it will follow, that whoever objects to any condition propos- 
ed, as beyond the power of congress, must fail unless he 
show, that the particular condition is incompatible with 
the constitution of the United Stales : that it is such a con- 
dition as the state has not a power to assent to. 1 am very 



208 

sensible that the question which arises here, is interesting 
and important, and that it is delicate, though otherwise I 
think not difficult. No one who has a feeling of regard for 
his country, can he indifferent to the sensation it occasions 
in this house, nor perceive, without some emotion, the line 
of division it marks. Yet it is a question that is before us ; 
it is a question we must meet, and while we owe it to our 
country to meet it fully and fairly, we owe it to each other 
to meet.it with mutual respect and forbearance. I will 
concede even more: — we are not to entertain, much less to 
express a thought hostile to the rights of the inhabitants of 
those states where slavery exists ; and in any thing I may 
say, I hope it will always be understood, that I consider 
those rights entitled to the protection of all the power of 
the country, without reference to any other consideration 
than that they are acknowledged by the Constitution. 
Among the many evils of slavery, it is one, that where it 
exists, it can scarcely be freely discussed, and yet there 
may be occasions when its free discussion is of the great- 
est importance. The same kind of difficulty existed at 
the formation of the Constitution. It was not removed by 
crimination, or suspicion, or threats ; it was adjusted upon 
the basis of an existing state of things ! 

Is this condition, then, incompatible with the constitution 
of the United States — so incompatible that a state cannot 
assent to it ? For if a state might voluntarily surrender it, 
congress may require its surrender as the term of admission. 
With what part of the constitution is it incompatible? It 
interferes with no express provision of that instrument. It 
must then be implied. What an implication ! Instead, 
however, of pointing out the parts of the constitution from 
which this implication can be made, state rights are im- 
mediately sounded in our ears — state rights are invaded 
and violated. Sir, " state rights'' is a phrase of potent effi- 
cacy, and, properly understood, of sacred regard. But 
what are state rights ? They are ample — they are invi- 



209 

olable ; they are the sure foundation and the lasting 
security of our liberties, and, I hope I may add, they are 
in no danger from the present proposition. But, I must be 
permitted to say, there are rights of the states who were 
parties to the constitution, and rights of states afterwards 
to be admitted into the confederacy. Will it be contended 
that they are in all respects identically the same, or that a 
new state is not upon an equal footing with the original 
states, unless it possesses precisely the same powers 1 A 
moment's attention will show that it cannot. Before the 
confederation, the thirteen states who composed it were in 
all respects sovereign and independent states, possessing all 
the attributes of sovereignty. The confederation was of 
sovereign and independent states, united only for certain 
purposes of common concern, in the management of which 
they acted as states. When, in the course of events, these 
states came to form a more intimate union, they presented 
to the convention points in which they agreed, and points 
in which they differed. They were respectively sovereigns 
of all the soil within their limits, and proprietors of all the 
vacant land. They were sovereigns for all the purposes of 
foreign as well as domestic legislation ; and no new con- 
federate could be admitted but by common consent, and 
upon such terms as the existing states might think fit to 
prescribe. There were, too, accidental diversities among 
them, of which I need only mention one, the existence of 
negro slavery in some of the states, permitted by their laws 
and incorporated into their institutions. 

With respect to the existing states, it may truly be 
affirmed, that they were left in the possession of every 
power and right, which was not conceded by them to the 
union. They derived no right or power from the constitu- 
tion, they only retained what they before possessed, with- 
out inquiry into the nature of its origin. The extent of 
this reserved possession is more easily understood than 
defined. It is sufficient for the present purpose to say, that 

27 



210 

it comprehended nil the power of slavery, as an existing 
state, or condition which they did not choose to renounce 
or relinquish, and perhaps had it not in their power to ex- 
tirpate, if they had so desired. The constitution was thus 
the creature of the states ; the work of their own hands. 
But what is a new state ? It is the creature of the consti- 
tution, deriving from the constitution its existence and all 
its rights, and possessing no power but what is imparted to 
it by the constitution. If it have a power to establish sla- 
very, it derives that power from the constitution, and the 
constitution becomes stained with the sin of having originat- 
ed, a state of slavery. What a reflection would this be 
upon that instrument ! How is it calculated to diminish 
the sacred regard that has been felt for it here and abroad ! 
Up to the present moment, no such charge can be made 
against the constitution. With respect to the existing 
states, it only tolerated what it could not remove; and in 
the case of Louisana, it submitted to circumstances equally 
uncontrollable. . But, (and I say it with pride and with 
pleasure,) it never yet has conferred a power to establish 
the condition of slavery, and I warn those who arc entrust- 
ed with its administration to beware how they claim for it 
the exertion of a capacity so odious. 

But wc arc told that every thing is implied in the use of 
the word " state" — that the constitution, when it speaks of 
the admission of new "states" into the union, necessarily 
means that they should possess certain faculties and powers, 
of which it is also contended, that the precise definition is 
to be found in the faculties and powers possessed by the 
original states — I admit, unhesitatingly, that there are 
rights so inherent and essential, and, if you please, inalien- 
able, that a state cannot surrender them, nor exist as a 
member of this union without them. But,, is it essential, 
by the principles of our constitution, to the character of a 
member of this union, (a newly admitted member, espe- 
cially,) that it should possess all the powers, or even all the 



211 

rights, that belonged to the original states? It must then 
be the sovereign of all the territory within its limits, which 
has never been the case in a single instance of a state 
newly formed out of the territory of the United States. It 
cannot be the case, for, by the practice of the Government, 
the admission is made to depend upon the number of the 
inhabitants, and not upon the appropriation of the land. 
The unappropriated lands belong to the United States. — 
Even its limits are settled by Congress. — It must, too, have 
an unlimited right of taxation — and it must have an inde- 
pendent and absolute power, extending to every thing 
within its limits — for all these powers belonged to the 
original states. Then, sir, not a single new state, (excep- 
ting Vermont,) has been properly admitted into the union, 
and the practice of the government, from its first foundation, 
has been one tissue of error and usurpation. 

In every instance, some restriction or curtailment of 
legislative authority, more or less extensive, has been 
imposed and assented, to, with universal approbation. In 
the case of Kentucky, as we have seen, Virginia stipulated, 
among other things, that for a limited time the lands of 
non-residents should not be taxed higher than those of 
residents, and that the lands of non-residents residing in 
Virginia, should never be taxed higher than those of resi- 
dents. This is a palpable restraint upon the exercise of a 
legislative authority, which every one of the existing states 
possesses without restriction, and yet it never has been 
supposed to place Kentucky in a condition of inferiority to 
her sister states. I will not tire the patience of the commit- 
tee, by going through the other instances, which have been 
already very fully brought into view. Enough has been 
said to show, that it has never been thought requisite, that 
a new state should possess the same identical powers which 
confessedly belonged to the original states, and that such 
identity is not necessary to a perfect political equality. 

To come nearer to the question, I beg leave to ask, is it 



212 



essential, by the principles of our constitution, to the cha- 
racter of a slate, that it should have the power of originat- 
ing, establishing, or perpetuating the condition of slavery 
within its limits? 

I request gentlemen to pause before they answer this 
question, and to look it fairly in the face, for it must be 
met. Is it essential to the character of a free republican 
state, that it should have the power of originating, estab- 
lishing, or perpetuating a system of slavery — so essential, 
that it is not a free republican state without the power, 
nor qualified to be a member of this confederacy 1 

Can it be possible, that a constitution framed to secure, 
to preserve, and to extend the blessings of liberty, itself 
rests upon a principle so impolitic and so indefensible as 
this ? I should very much fear, that we neither expect the 
favour of Heaven nor the approbation of men for a consti- 
tution so constructed — whose professions were so entirely 
at variance with its principles. Can it be pretended, will 
any one be hardy enough to assert, that this power belongs 
to the rights of self-government, or of a just sovereignty, or 
that it is to be arranged in the same class with the autho- 
rity exercised by every well constituted society, in regulat- 
ing the domestic relations ? Where slavery exists, it may 
be, (as was said by a gentleman from Virginia,) that slaves 
were regarded as in a state of perpetual minority. It 
might with equal propriety be said, at once, that they are 
regarded as in a state of perpetual subjection — it amounts 
to the same thing ; for surely no man will seriously affirm, 
that this decree of perpetual minority, has its source in the 
same feelings and views, which in all civilized nations, have 
led to the enactment of laws for the protection of infancy 
against its own folly and imprudence. The one originates 
in parental affection, anxiously providing for the welfare of 
its offspring, during the period when by nature the judg- 
ment is weak and the passions strong ; and every incapacity 
which the laws have established, is meant as a shield for 



213 

infancy against danger to itself. The other, has it any 
view to the comfort or well-being of this perpetual minor 1 
I will not pursue the inquiry, lest I should wound the feel- 
ings of some who hear me, and whom 1 would not willingly 
offend. Where slavery exists, you may call it what 
you please — you have a perfect right to do so, and to 
regulate it by such laws as you deem best — but in a dis- 
cussion like the present, it seems to me an utter perversion 
of language to style it a minority, as it would be an utter 
perversion of sentiment, to suppose that it has any resem- 
blance to the endearing relation out of which the laws for 
the government of infancy have grown. 

How is this power essential to the character of a free 
republican state? Suppose this evil were now happily 
extirpated, is there any moral or political competency under 
the constitution to restore it among us ? Has any one ever 
seriously contended for such a power? No: it certainly 
could not be re-established, without the consent of congress, 
and yet, I think it will scarcely be asserted, that the states 
would not still possess all the essential powers of self- 
government, and a just sovereignty; that they would not 
be as free, as independent, as happy, and at least as 
powerful as they now are. 

Upon what footing then, do the original states stand in 
this respect ? Did the constitution either give or reserve to 
them the right of originating or establishing a state of sla- 
very ? — Have they now, or have they ever had such a 
right? Is there a right, in any of them, to reduce a free 
man to a state of slavery except as a punishment for crimes 
of which he has been legally convicted, and not extending 
to his offspring ! The great principles of the constitution are 
all at variance with such a doctrine. It is plain enough 
how the convention considered the matter, and how it was 
considered by the states, individually and collectively. 
They regarded it then, as they regard it now, as an unfor- 
tunately existing evil, of which it was impossible to rid them- 



214 

selves, and which therefore they must manage in the man- 
ner most conclusive to their safety: an accidental and de- 
plorable state of things, not to be terminated by any means 
which human wisdom was then able to devise. It was 
upon this footing, that which is called the compromise took 
place — it was a compromise with an afflicting necessity, 
and mark well the manner of it ! It was a silent compact 
between the existing states, upon a subject which they all 
felt was beyond their power to deal with. That silence 
— that most emphatic and impressive silence of the consti- 
tution, is the sure indication of the feelings which prevailed 
in the convention. What could they say 1 They would 
not utter the word slave or slavery, and whenever they 
found occasion to make any provision on the subject, they 
had recourse to other language, as if the very terms were 
hateful and offensive, and unfit to be employed in that in- 
strument. What could they do? They could only indulge 
a hope, that a time would come when this evil might be 
eradicated, and in the mean time they bore their testimony 
against it by that expressive silence, of which no one could 
mistake or misunderstand the meaning. 

That compact, not of words, but of silence, had the pre- 
cise effect, while it avoided a recognition of the legitimate 
origin of the evil, of leaving every one of the then existing 
states in possession of the power which it actually exercised, 
except so far as it was parted with to the union. The am- 
biguity in the constitution, if any there be, arises altogether 
from this well meant mode of treating the subject. What 
the framcrs of that instrument intended should signify their 
detestation of slavery, has furnished an argument in favour 
of its extension. For, as silence left the existing states in 
possession of the power, so silence is interpreted, in the ad- 
mission of new states, to confer the power ; and this rule of 
construction throws upon congress the necessity of an ac- 
tive exertion of authority for its restraint, for which gen- 
tlemen insist we must show a positive grant. — But, with 



215 

respect to the existing states, it was a power paramount 
to the constitution itself, and which no slate surrendered ; 
a power, however, and a necessity, too, confined to her own 
limits. 

Can this be affirmed with truth of any state newly admit- 
ted into the union? Can it be said to stand upon the same 
footing as the original States, either as to paramount pow- 
er, and existing condition, or the case of necessity 1 Up to 
the moment of admission, it is subject entirely and exclu- 
sively to the government of congress, as a part of the Ter- 
ritory of the union. — It presents itself to congress, as a 
Territory, asking to become a state, but bringing with it 
no state rights — no state powers — nothing to be reserved, 
hut every thing to be received. It presents itself free from 
the condition of slavery, or subject to it in so slight a de- 
gree as to be easily manageable, and affording no just 
ground for its continuance. Unless, therefore, it can be 
shown, that it is so essential to the completion of a free 
republican state of this union, to have the power of origi- 
nating or perpetuating slavery, that it cannot be free and 
republican without it, the argument must fail altogether. 
Besides, Sir, how can the rights of the new states be affect- 
ed ; — it has the choice of coming in upon the terms, or not 
coming in at all. 

1 am aware, it may be said, that the compact between 
the existing states, ought to be considered as a mutual stip- 
ulation, with each other, that new states should in this 
respect be left free to choose for themselves. It is no where 
said so, and to me it seems worse than idle to suppose, that 
there is a dormant abstract principle in the constitution, in 
favour of slavery, to spring up only as a barrier against 
what is, and always has been conceded to be right and just. 
Show me the value of it, in practice, and I am then pre- 
pared to listen to the deduction ; but, as long as the argu- 
ment terminates only in evil, or which is the same thing, 
in preventing a good, so long exactly it is impossible for it 



216 

to find its way to the hearts or the understanding of men. 
When, not long ago, it was affirmed in this house, that the 
constitution gave to congress a power to make certain pub- 
lic improvements — to open the channels for wealth and 
trade to flow from one quarter of the country to another — 
to approximate them to each other, to connect them by the 
ties of interest and mutual dependence and mutual regard, 
I listened with attention and pleasure, for I expected to 
find a power so beneficent. So, sir, if 1 am told that there 
is a power in the constitution to arrest the march of sla- 
very, to extend the sphere of freedom, personal as well as 
political, that too, I expect to find. But, when I am told, 
that there is a silent, dormant principle in the constitution; 
a sullen power that forbids us to check the extension of 
slavery, I confess to you, that I involuntarily shrink from 
the process of reasoning by which it is deduced, and revolt 
involuntarily from the conclusion. If it be apparent, I must 
and I will submit to it ; but if it be not clear, I am not dis- 
posed to search for it, either among the high attributes of 
sovereign power, or the more frequent refuge of state 
rights. 

But, I admit that this assertion is true, as to every right- 
ful and essential power, which belongs inseparably to re- 
publican self-government, or is necessary to place a state 
upon an equal political footing with her sister states, and 
render her worthy to be a member of the confederacy. As 
to the rights of self-government, I have nothing more to 
say. It only remains to enquire, whether the proposed 
restriction disturbs or interferes with any of the great poli- 
tical rights of the state, or is calculated to lessen her weight 
and influence in the scale of the union 1 The great and 
important right of every state, is that which regards her 
representation in the national councils. Is that impaired 
by the restriction 1 The compromise of the constitution, 
in the article of representation, was founded upon a simple, 
and now well established principle, applied to preserve the 



217 

balance of the existing states. It was not, that property 
was to be represented — for then, every kind of property 
ought to have been estimated in fixing the ratio — but that 
this particular kind of property, occupied the place and. 
consumed the food of a free population, and to that extent 
lessened the comparative numbers of the state, not for a 
time only, but forever. If the free population had fur- 
nished the ratio, how many representatives would Virginia 
now have? To preserve the balance of the states, then 
and thereafter, the rule of three-fifths was adopted, and 
with this rule, the constitution considers that there is a fair 
political equality between the free states and the slave 
states. Can it be said, that the political rights of the state 
are in this leading and all-important point impaired by the 
restriction? In point of fact, her influence and power are 
increased, for the free population will increase more rapidly 
than the slave population, and she is entitled to a repre- 
sentation for the whole number, instead of being limited, as 
to a part, to three-fifths. Whoever will take the trouble 
to examine the comparative increase of the two descrip- 
tions of states, will be satisfied of this, and I have no desire 
to obtain for the free states the advantage hinted at by a 
member who has opposed the amendment, of infusing into 
the states to be formed, a debilitating disease, which will 
stint their growth and lessen their political weight in the 
union. The political right of a state, secured by the con- 
stitution, is, if there are slaves, to apply to them the rule of 
three-fifths, and that right, I admit, cannot be infringed. — 
But it is not necessary to the enjoyment of the full benefit 
of the principle of representation, nor fairly to be deduced 
from it as a part of the compromise, that a new state should 
be permitted to have slaves. 

I may be allowed again to ask, what are the political 
rights of a state in regard to the union ? They are the 
political rights of the free inhabitants, the only condition 
known to the constitution. Slaves have no political rights. 

28 



218 

They are acquired by force, and they are held by force ; 
and if it be lawful to hold them at all, it is also lawful to 
use any degree of force that is necessary to hold them in 
quiet subjection. Every law of a slave holding state, 
which provides particularly for this condition of men, by 
peculiar exertions of authority, by an unusual discipline, 
or by unusual terrors and punishments, having no view to 
their own benefit, but only to the safety of their masters, is 
an exertion of force, necessary (where the condition exists) 
for the security of society, not to be mentioned reproach- 
fully, much less to be interfered with, but still a mere exer- 
tion of force demonstrating that slaves have no political 
rights. They add nothing to the mass of rights. 1 would 
not be understood to question the power of the states where 
this condition exists. Whether it is a power reserved, or a 
power acquired, it is, as to them, recognized by the consti- 
tution, and entitled to the support and protection of the 
whole strength of the union. We may have our wishes 
and our feelings on the subject — it is for them alone to 
decide, how long this state of things shall continue. If ever 
the time should come, when they shall be able and willing 
to rid themselves of the evil, it will be hailed with unaf- 
fected delight. Till then, while this constitution endures, 
we have no right to ascend beyond its provisions, and we 
are bound to carry them fully into effect. The state which 
I have the honour to represent, has been as ardent and 
sincere in the cause of emancipation as any state in this 
union. But she has never lost sight of her obligations to 
her sister states. Her laws and her judicial decisions will 
be found to be in strict conformity with the constitution, 
and so they will continue to be. 

If the members of the convention meant to frame a com- 
pact between the states, to the effect which has been men- 
tioned, that is to say, that every new state should, in this 
respect, be left entirely free, we might reasonably expect 
to find it somewhere in the constitution. It could not have 



219 

been forgotten or overlooked — it was a subject in itself of 
too much interest and importance : and, besides, the ordi- 
nance of 1787, was adopted, while the convention was sit- 
ting that framed the constitution, and that ordinance pro- 
vided for the admission of states, with a perpetual inhibition 
of slavery. Under the confederation, it had been assumed 
as a power belonging to congress, and exercised as a power 
fit to be exercised by congress. It is incredible, that the 
constitution should have designed to disaffirm all this, and 
yet have said nothing about it, but conferred without limi- 
tation the very power to which it had become an establish- 
ed incident. 

Can any good reason be assigned why the existing states 
should have entered into such a compact? It was not 
necessary to the compromise, which regarded only the ac- 
tual condition of the states, and which meant to preserve 
to each of them, nothing more than the power within its 
limits. The constitution was not formed for a day or a 
year, but for a succession of time, I hope for ages ; and it 
might easily have been foreseen, that cases would probably 
occur, in which the exercise of such a power by the go- 
vernment would be of the utmost importance. Suppose 
the case of a distant or a frontier state applying for admis- 
sion. If you permit her to have this kind of population, 
you are bound by the constitution to protect her with all 
the means of the union, against the insurrection of the 
enemy within her bosom, and against the inroads of any 
foreign nation. You are bound, even to secure to her the 
enjoyment of this very property, and if a neighbouring 
power, should by force or seduction, carry off her slaves, it 
would become a cause of national quarrel and of war. 
Our own recent history gives us an example of something 
of this sort. What was the Seminole war ? The runaway 
slaves of Georgia, combining with outlaws and Indians in 
Florida, carried on hostilities upon the borders of Georgia, 
and that state (as she had u right to do) called upon the 



220 

United States for protection. It was granted, and hence 
the Seminole war. If a new state, circumstanced as 1 have 
supposed, should apply for admission into the union, would 
it not be reasonable, nay would it not be essentially just 
and necessary, to require her first to stipulate, that she 
would not introduce that source of weakness and that 
cause of quarrel, which might be so expensive and bur- 
thensome to the union ? It ought not to be a concern of 
the state alone, because it may become a charge to the 
nation. 

I think I may safely affirm that this is the practical, 
established construction of the constitution, used and ap- 
proved f.'oni its adoption to the present day. But permit 
me for a moment to examine the spirit of that instrument. 
If, as is clearly shown, the toleration of slavery by the 
constitution, and the corresponding provisions, were owing 
to an incidental, existing and uncontrollable necessity, then 
it is plainly the spirit of the compact, that the power should 
never be permitted to a new state, but where the same 
imperious circumstances exist to demand it, as in the case 
of the original states. Such was the fact in the instance of 
Louisiana. — What, then, is it, that congress are to do upon 
such an occasion 1 To impose conditions, arbitrarily ? No. 
To judge of the circumstances, regarding in due proportion 
the interests of the state and the union. If that deplora- 
ble necessity exist, they permit in silence, what (like the 
framers of the constitution) they will not in terms avow. 
If not, they adjudicate by the restriction, which it is then 
their moral and constitutional duty to impose. 

This is the true, it is the necessary, and only just con- 
struction of the constitution — the only one that is consistent 
either with the professions we have always been in the 
habit of making, or with the hope that was certainly once 
very much cherished, that a mode might some day be de- 
vised of abolishing this great evil. We may assert as we 
will, that we are not in favour of slavery ; as long as it 



221 

shall be seriously insisted, that by the constitution of our 
country, every new state has the inherent and inalienable 
right of establishing domestic servitude, so long our profes- 
sions will be disbelieved, and we ourselves, as well as that 
venerated instrument, be charged with hypocrisy. Sup- 
pose, sir, that the existing states were in a course of aboli- 
tion, would it be permitted to a new state, governed by 
some selfish or ill judged views of interest, to revive the 
condition of slavery, and thus to control and defeat the 
policy of all the others 1 Ought it to be in the power of 
any new state, to enlarge the region of slavery, and thus to 
increase the difficulties, already sufficiently great, presented 
by this very difficult and embarrassing subject ? Can it 
be, that we sincerely believe it to be an evil, and yet will 
gravely insist that it is a right of every new state, to do 
what 1 I was going to say, enjoy this evil, but that would 
be a perversion of terms — afflict and injure herself, and her 
associates too, by admitting it within her limits ? If it be 
a good, the argument is intelligible : If it be even doubtful, 
there is still some scope for choice ; but if it be an acknow- 
ledged evil, it seems to me extravagant, if not absurd, to 
contend that there is a right to have it, and that a prohi- 
bition restrains or impairs the just liberty of a new state. 

This construction too is plainly indicated by at least one 
provision of the constitution, I mean the 9th section of the 
first article. " The migration or importation of such per- 
sons as any of the states now existing shall think proper to 
admit shall not be prohibited by congress prior to the year 
1808." Why is this restraint upon the power of congress, 
confined to the states " noiv existing V It was to give to 
congress the power, immediately, to prevent the introduc- 
tion of slavery into the states to be formed. I do not 
doubt that it had a particular reference to the ordinance of 
1787, and was meant to guard against the inference, that 
congress had not the authority to complete the work the 
ordinance had begun. For if the restraint had been gene- 



222 

ral, comprehending the states to be formed, as well as those 
existing, congress could not within the twenty years have 
prohibited the "migration or importation" of slaves, into 
the slates to be admitted into the North West Territory; 
and then, one of two consequences must have followed, 
cither congress would have refused to admit the states 
within the twenty years, which would not have been con- 
sistent with the engagements entered into, or they must 
have admitted them with the power of receiving slaves, 
which would have been contrary to the provisions of the 
ordinance. It is therefore, I say, that this section of the 
constitution had a plain reference to the ordinance ; and 
while it evinces in the clearest manner, a constitutional 
distinction between the existing states, and states to be ad- 
mitted, upon the very subject now in question, and plainly 
intimates a design lo give a control to congress over the 
introduction of slavery into states to be formed ; it also 
seems to me to afford a constitutional sanction to the 
ordinance itself. 

The view which I have thus, I fear at too great expense 
of time and patience to the committee, endeavoured to 
present, is to my mind so conclusive, that I should hope it 
would be unnecessary to detain them longer. But, there 
has been all along an assumption, by those who are opposed 
to the amendment, which I think extremely questionable, 
if it be not wholly unfounded. It is assumed, that the condi- 
tion proposed by the amendment, will produce an inequality 
between the state to be admitted, and the existing states. 
It is not material (the inequality being of no consequence,) 
but I mistake if I may not safely deny that it will occasion 
any inequality at all. Sir, has any state in this union a 
constitutional capacity to originate or establish a state of 
slavery ? To be more precise — If a state, (Pennsylvania, 
for example,) has once abolished slavery, has it a power, 
without the consent, and against the will of congress, to 
restore that condition ? This is an interesting, but I think 



223 

it is not a difficult question, and certainly it is not a dan- 
gerous one to discuss. No state, that has once abolished 
slavery, will, I believe, ever desire to restore it. And here, 
Sir, I invoke to my aid the great principles of the constitu- 
tion, and the great truths of the Declaration of Independece. 
I invoke, too, the principle of the compromise, founded as it 
was upon an existing state of things, and recognizing no 
rights but what necessity conferred. 

The reduction of a fellow creature to slavery, to a state 
where nothing is his own but his sorrows and his sufferings, 
is, if you please, an act of sovereign power, that is of sove- 
reign force, which obeys no law but its own will, and knows 
no limits but the measure of its strength. If these states 
were sovereign, they too like other sovereigns might 
exert a lawless power. It would nevertheless be morally 
wrong. But, they are sovereignties, qualified by the grants 
of power to the union, and by the great political principles 
upon which all our institutions repose. The sanction of 
these principles is now added to the force of moral obliga- 
tion ; and the beautiful feature of our government, that 
which entitles it to the respect of strangers, and to our 
affection, that which distinguishes it from all the govern- 
ments that have ever existed, is to be found in this single 
truth. Such is its structure, that it can do no lawless vio- 
lence, and whenever we speak of sovereignty, we mean a 
rightful moral sovereignty, and not a power to do whatever- 
it has strength to accomplish. 

Whence, then, can a state derive such a right, I mean a 
right to originate or re-establish slavery? It cannot, by 
force, reduce freemen to the condition of slaves. This no 
one would undertake to maintain. It cannot draw them 
from abroad, for congress have the unquestionable power 
to prohibit importation. Can it receive them from other 
states of this union ? The supposition imputes to the consti- 
tution the greatest weakness, and is wholly inconsistent with 
the hope entertained by the great men who framed it, that 



221 

this evil might some day be abolished. I think this channel 
is stopped, as it ought to be, by the power of congress to 
prevent importation and migration. Importation, we all 
understand to include slaves brought in from abroad, from 
any foreign territory, whether by land or by water ; and 
we all agree, that it is sufficient to comprehend in its inter- 
dict, every bringing in of slaves from abroad. The term 
" migration" it applied to the same description of " persons" 
and upon the plainest principles of construction must be 
understood to apply to something different from " importa- 
tion." What can it apply to, but the passage or transfer 
of slaves from one state or territory to another ? An 
argument urged by the member who last addressed the 
committee, (Mr. Clay,) I mean the argument derived from 
that part of the constitution which denies to congress the 
power of imposing a duty upon exports from any of the 
states, strongly supports this interpretation. The two clau- 
ses, taken together, (and they are in the same section,) 
amount to this : you shall not prohibit the " importation" 
until after the year 1808, but in the mean time, you may 
impose a tax or duty upon " such importation" not exceed- 
ing ten dollars for each person : you shall not, during the 
same period, prohibit " migration," but can you impose a 
duty or tax ? No. The authority to impose a duty or tax 
is dropped, and why? Because migration, meaning, (as 
we insist,) a transfer from state to state, includes in every 
instance, the exportation from a slate, and therefore by the 
fifth clause of the same section, no " duty or tax" can be 
laid upon it. 

Various interpretations of this clause of the constitution 
have been attempted by those who are opposed to the 
amendment, but none of them, I think, consistent with the 
fair import of the terms, or the manifest spirit of the consti- 
tution. One gentleman indeed, (Mr. Smith of Maryland,) 
has said, some days ago, that it was intended to give to 
congress the power to prevent the passage from one state 



225 

into another of slaves imported into the former from abroad. 
His long experience and knowledge~entitle the suggestion to 
great consideration, and it appears to me to concede the 
precise construction contended for. He admits that the 
clause applies to slaves, and the term " migration" to slaves 
transferred from one state to another. Now, as there is no 
description of the kind of slaves, which limits it to slaves 
imported, it must apply to all slaves. I will not insist upon 
the advantage of this concession ; the case is fully made 
out without it. 

But we are told by the gentleman from Delaware, that 
the technical meaning of the word migration, is a change 
of residence from one country to another. I must be per- 
mitted to say, that I am not aware that the word in ques- 
tion has ever received a technical meaning. We call those 
words technical which have been appropriated to the ser- 
vice of an art or science, and in relation to that art or sci- 
ence have received a definite and somewhat artificial sense 7 
well understood by those who are acquainted with the sub- 
ject. Thus, when we speak of an " estate tail" or " a 
contingent remainder," the language is perfectly intelligi- 
ble to a lawyer. The term, viigralion, has never to my 
knowledge been so appropriated, unless it may be considered 
as having been adopted by naturalists as descriptive of 
the habits of certain animals, and then it means simply a 
change of climate, for the sake of temperature, or a change 
of place for the sake of food ; but not a change of country. 
In its vulgar sense, that is, its common sense, as given to us 
in dictionaries, as used in conversation, or by approved 
writers, it means only a change of place. In two pages of 
Dr. Seybert's Statistical Annals, (37, 38,) the word is three 
times used to denote the change or transfer of residence 
from one state to another ; and, it may be remarked in pas- 
sing, is accompanied with a reflection which well deserves 
the attention of those who insist so strenuously upon the 
free admission of Missouri, in order that the owners of 

29 



226 

slaves may be enabled to go into that state. " It is impor- 
tant to consider how for the diffusion of our population may- 
weaken us as a nation, and what will be the effect of the 
migrations on the agriculture of the Atlantic slates? Ma- 
ny valuable farms, originally productive, have been aban- 
doned, after they were exhausted and made barren from 
constant cultivation, and no application of the means to 
restore their lost fertility. If migration be continued under 
these circumstances, some districts will hereafter exhibit 
all the features and poverty of a desert, and extensive tracts 
of valuable land will be a waste, to the injury of our agri- 
culture, manufactures, and commerce. In many of these 
situations, industry would be abundantly rewarded for all 
the labour and expense of renovating the unmanaged and 
impoverished soil." I am reminded by some one near me, 
of another difficulty supposed to be in the way of our con- 
struction, and that is, that migration means a voluntary 
change of place, and that the removal of a slave is without 
his own consent. Even if this were correct, it would 
amount to nothing. The will of a slave is always the will 
of his master, and his acts, whenever they are in obedience 
to his master's orders, are by the constitution and laws 
deemed to be voluntary. — What other term could have 
been employed 1 We are to remember, that though the 
slave is regarded as property, yet is he also regarded as a 
" person," a human being, having a will, but that will ever 
in coincidence with the wishes of his master, and it is from 
this analomous composition of character, that the consti- 
tution itself had great difficulty in finding terms applicable 
to his condition or conduct. 

We have been told, too, (for the attempts have been 
numerous to avoid the force of this clause) that it applies 
to freemen coming from abroad. It would be very extra- 
ordinary, indeed, if the same word, in the same sentence, 
were to be interpreted to include two descriptions so oppo- 
site as freemen and slaves. — But all this is minute verbal 



227 

criticism, and 1 fear I shall fatigue the committee by dwell- 
ing upon it. There is a much broader, and still more 
satisfactory answer to the objection. The clause in ques- 
tion has always been understood to apply to slaves, and to 
slaves only, from the adoption of the constitution to the 
present time. It is, (and that is entirely conclusive) a 
restraint upon the power of congress, insisted upon by the 
slaveholding states, to secure for a limited time the right of 
supplying themselves with slaves. This is familiarly 
known to every person, who has any acquaintance with the 
history of the constitution, and it is known, also, that two 
of the states (South Carolina and Georgia.) would not have 
come into the union without it. How any one, knowing 
these things, can gravely assert, that the clause has any 
provision relating to freemen, it is entirely impossible for 
me to conceive. It imputes either mistake, or foolish de- 
sign to the framers of that instrument, for no good reason 
can possibly be assigned, for withholding from congress, 
during the twenty years, any power it possessed, over the 
admission of freemen, though we know well the reason 
(good or bad) for restraining the power as it respected 
slaves. — I need not notice the observation of the member 
from Delaware, that this, being a Federal power, must be 
understood as applying in its exercise to the union, and not 
the states. Every power, to be exercised by congress, is a 
Federal power, but it does not follow that it is not to ope- 
rate upon the states. This, in particular, by its very 
terms, is to apply to the states individually. But I hasten 
to another objection, which has been very seriously urged, 
and, if well founded, renders all this examination super- 
fluous. We are informed, that the clause in question is not 
a grant of power, it is only a restriction or restraint upon 
power. To speak with perfect precision, it is an exception 
or restraint for a limited time, upon the exercise of a power. 
— Such an exception, it is most clear, is conclusive evidence 
of a grant ; for if there were no power granted, there could 



228 

be no exception from or restraint upon its exercise. It is 
of itself equivalent to a grant of the power, after the expi- 
ration of the time. A rule of this house directs, that. 
strangers shall not he admitted during the time it is in ses- 
sion. Would any one douht that this gives permission to 
strangers to enter at other times 1 

If this interpretation, however, (contrary as it is to the 
plain design of the constitution) were correct, still there 
would be no difficulty. It follows immediately after the 
enumeration of the powers granted to congress, and among 
them we shall certainly find that which was intended for 
a time to be restrained, unless we suppose the framers of 
the constitution to have misunderstood, most grossly, their 
own work. If there be some ambiguity in the language, it 
arises from the remarkable reserve of the convention, upon 
a subject which they did not choose to call by its proper 
name, and that ambiguity ought to be favourably expound- 
ed. Congress, then, have a power, " to provide for the 
common defence, and general welfare," and for that pur- 
pose they have a specific power to " regulate commerce 
with foreign nations, among the states, and with the Indian 
tribes." Slaves are every where articles of trade, the sub- 
ject of traffic and commerce, bought and sold, from place 
to place, and from hand to hand, by public sale or by- 
private sale, as suits the convenience or interest of the 
owner, and are in all respects treated as property. The 
general power to regulate commerce, includes in it, of 
course, a power to regulate this kind of commerce. With 
respect to slaves imported from abroad, this lias not been 
disputed and cannot be disputed — while it continued, it was 
a branch of the trade with foreign nations. The power to 
regulate commerce " among the states" is given in the same 
clause and in exactly the same terms as the power to 
" regulate commerce with foreign nations." If the latter 
authorized congress to prohibit the importation of slaves 
from abroad, (which has never been even questioned,) how 



229 

can it be doubted that the former gives them authority, 
when in their opinion the " general welfare" or the " com- 
mon defence" require it, to prohibit the transportation 
from state to state 1 If one comprehends slaves, so does 
the other, and if this conclusion had never been carried 
into practical effect, it would only prove that no case had 
occurred in which congress thought it expedient to exert 
the power. But, this construction is obviously necessary 
to the plain design of the constitution, not only to the large 
and liberal views with respect to the whole subject of sla- 
very, of which I will speak hereafter, but the particular 
design manifested in the very clause now in question. It 
is conceded that congress might at all times prohibit the 
importation of slaves from abroad into the territories of the 
United States, as well as into states formed after the con- 
stitution, the restriction until the year 1808, being confined 
to the states then existing. Of what avail was this power, 
(however derived,) unless they could also prevent importa- 
tion through other states, or rather the passage of newly 
imported slaves from the old states, into new states or ter- 
ritories 1 Sir, this construction, in itself so reasonable, 
has actually been adopted in practice. By the act of 
1804, for dividing Louisiana into two territories, and mak- 
ing provision for the government of the southern portion, it 
is enacted, that no slaves shall be imported from abroad, 
and none shall be brought from any port or place within the 
limits of the United States that have been imported since the 
first day of May, 1798 — or shall hereafter be imported. It 
is no answer to this to say, that the slaves of a man mi- 
grating from one state to another, are not carried thither 
for the purpose of commerce or trade, but are a part of 
what has been called " his family." The power to regu- 
late commerce, extends to ever}?- thing which is the subject 
of traffic, and is limited only by the nature of the article, 
not by the intention or views of the owner ; or else, every 
law for the regulation of trade would become ineffectual — 



230 

slaves may be carried for the purpose of selling, and even 
when this is not the original intention, they may neverthe- 
less be sold, and a man, after disposing of all his " family," 
may return and buy another family, and afterwards sell it. 
They are articles of traffic, and that is enough — neither is 
it any answer to say, that the power in question is a power 
to be exercised by legislation, and not in the form of a con- 
dition to be prescribed to a particular state. If it exist at 
all, of which I hope there is now no doubt, we arrive, after 
this, I fear, very tedious investigation, at a result decisive of 
the present controversy. For if the exposition given be 
correct, it will follow, that no state in the union, having 
once abolished slavery, can re-establish it without the 
consent of congress ; and that it is no disparagement of the 
rights of a new state to lay it under the same prohibition. 
There is then a precise and perfect equality. 

But, notwithstanding any supposed ambiguity in the 
constitution, arising from the cause I have adverted to, 
there are great leading points in that instrument, which 
were intended to stand out upon occasions like the present, 
as guides and marks to direct our steps, and it is a relief to 
ourselves, as well as a debt of justice to those who framed 
the constitution, to keep them constantly in view. We 
can see there, plainly asserted, the political and personal 
equality of men — a deep and humiliating sense of the evil 
of slavery — a hope that it might at some time be abolished, 
and a determination as soon as possible to abolish it. From 
the date of the constitution to the present moment, these 
have been the governing principles of this nation's conduct, 
and the present is the first effort to arrest a career urged 
equally by policy and humanity. If Missouri be permitted 
to establish slavery, we shall bring upon ourselves the 
charge of hypocrisy and insincerity, and upon the constitu- 
tion a deep stain, which must impair its lustre, and weaken 
its title to the public esteem. It is to no purpose to say, 
that the question of slavery is a question of state concern. 



231 

It affects the union in its interests, its resources, and cha- 
racter, permanently — perhaps forever. One single state, 
to gratify the desire of a moment, may do what all the 
union cannot undo — may produce an everlasting evil, 
shame and reproach. And why 1 Because it is a state 
right. Sir, you may turn this matter as you will ; Missouri, 
when she becomes a state, grows out of the constitution, 
she is formed under the care of congress, and admitted by 
congress ; and if she has a right to establish slavery, it is a 
right derived directly from the constitution, and conferred 
upon her through the instrumentality of congress. We 
cannot escape from our share of the blame, and, (which is 
infinitely worse,) we cannot rescue the constitution from 
the opprobrium which belongs to such a deed. That re- 
fined construction, which makes the constitution a silent 
and acquiescing accessary, looking with undisturbed com- 
placency upon what it professes to hold in detestation, may 
answer the purpose of argument here, but it can avail no 
where else. The judgment of mankind is not formed upon 
artificial distinctions like this. As surely as the tree is 
judged by its fruit, will the constitution be judged by what 
it produces. I earnestly beseech gentlemen, then, to save 
the constitution from a stain which has never yet been 
fixed upon it, and with this entreaty, under the deepest 
and most sincere feeling, I leave it in their hands. 

2. Upon the subject of the treaty of cession, I will detain 
the committee but a very short time. It has always ap- 
peared to me to be a proof of the weakness of the argument 
against the amendment, that it was obliged to resort for 
support to this topic, because it supposes that the inhabi- 
tants of the territory of Missouri have higher rights and 
privileges than the citizens of any territory within the 
original limits of the United States. One gentleman says, 
indeed, that Missouri derives her right from Heaven. If 
so, there is an end to all question about the constitution or 
the treaty, though it might be extremely difficult for some 



232 

of us to understand, how from such a source could be de- 
rived a lawful power to establish slavery. 

If we arc bound by treaty stipulations, it will be admit- 
ted that they must be fulfilled. The public faith is to be 
preserved inviolate, at every hazard of consequences. But, 
before we admit a construction so dangerous as that 
contended for, let us examine carefully the extent of our 
obligations. 

There are none, I suppose it will be conceded, who can 
call the treaty to their aid, but those who were inhabitants 
of the ceded territory, and subjects of the ceding power, at 
the time of the cession. In terms, the article in question 
applies only to them. Suppose it had all been vacant 
territory at the time of the cession, and since peopled by 
citizens of the United States. Would it have been seri- 
ously asserted, that they acquired any new or higher pri- 
vileges or rights, by migrating to Louisiana? /As to the 
original inhabitants themselves, it is a question, not of 
legislative, but of judicial cognizance, for a treaty is the 
supreme law of the land. ' The condition, however, such as 
it is, is not annexed to the territory ; it is a stipulation in 
favour of the free inhabitants, and as to them, it has no 
application, after they have become incorporated into the 
union, and are made citizens of the United States — they 
then become subject to the legislation of congress. — The 
distinction between the territory and the inhabitants is so 
obvious as to be perceived at a single glance. The one 
is simply ceded, transferred in sovereignty, which places it 
exactly upon the same footing as any other territory of the 
United States, without any condition. The other, that is, 
the free inhabitants, are also transferred, but with a stip- 
ulation entirely personal, that they shall, as .soon as possi- 
ble, " be incorporated in the union, and admitted to the 
enjoyment of all the rights, advantages, and immunities of 
citizens of the United States," and " in the mean time they 
shall be maintained and protected in the free enjoyment 



233 

of their liberty, property, and the religion which they 
profess." 

How it was intended to make them citizens, I do not 
pretend to know. Certainly, a treaty cannot confer the 
privileges of citizenship ; that can only be done by the 
operation of an uniform naturalization law ; and while it 
is acknowledged, that the treaty making power may right- 
fully bind us to do every thing which is within the con- 
stitutional competency of any department of the govern- 
ment, it can never be allowed to go further, for then it 
would transcend the constitution itself. By what means 
these free inhabitants were to be made citizens, or at what 
time, are questions I need not now attempt to answer. 
There is some difficulty in them, undoubtedly. This dif- 
ficulty it was — or rather the impossibility of bringing the 
inhabitants into the union, by any process unknown to the 
ordinary legislation, that occasioned, in the first place, the 
qualification of the engagement " as soon as possible," which 
may be fairly interpreted to mean " as soon as our constitu- 
tion would permit ;" and, in the next place, the stipulation, 
that until they should become citizens, they should be 
maintained and protected in the enjoyment of their liberty, 
property and religion. From the moment they are incor- 
porated, (this is the precise import of the treaty) they are 
to be upon the same footing with all other citizens of the 
United States. Till then, they are aliens, but are not to 
be prejudiced by their alienage. 

Did we mean to permit any foreign power to intermeddle 
with our internal concerns? The sanction of treaties is 
in the ability of those who make them, to enforce the ob- 
servance of the stipulations they contain. Were our 
negotiators so unwise — were the President and Senate so 
forgetful of their duty, as to make and ratify a treaty by 
which our own citizens were enabled to appeal from this 
government to a foreign power, and call in its interference, 
by war if necessary, to settle their rights 1 Such a suppo- 

30 



231 

sition is entirely inadmissible. This article was probably- 
proposed by our own negotiators — if it was, it was a most 
unequivocal tribute, from the other high contracting party, 
of respect for our constitution and laws, for it admits, that 
no further security was necessary for the protection of their 
ceded subjects. But, did it mean to give to the free inha- 
bitants of Louisiana any peculiar rights of property, higher 
or greater than those enjoyed by other citizens, after they 
should become citizens of the United States'? It was be- 
yond the treaty making power to grant or to contract to 
that extent. Will it be admitted, that it was necessary 
for the security of the citizen, that to the constitution should 
be superadded the obligations of a treaty, and that to the 
principles of our Government must be joined the right of 
calling in a foreign power ? Why, Sir, I have heard it said 
in this debate, that the treaty not only gives rights to those 
who inhabited the territory, but also to our own citizens 
who have migrated thither since the cession. The doc- 
trine thus asserted, appears even more objectionable than 
that J have alluded to; but it is only worse in appearance, 
for in both cases it supposes an appeal to a foreign power, 
from our own citizens, against the government. 

What are the " rights, advantages and privileges," of a 
citizen of the united States, which are guaranteed to the 
inhabitants of Louisiana ? They are the same throughout 
the United States : They are, therefore, independent of 
local rights, or those which depend upen residence in a 
particular place. An inhabitant of a state, has certain 
privileges arising from his inhabitancy of the state. An 
inhabitant of a territory, too, has certain privileges, which 
arise from his living in a territory. A citizen of the United 
States, who resides neither in a state or territory, but is 
out of the limits of the union, enjoys -neither the privileges 
of a state or a territory ; but he possesses the rights, privi- 
leges and immunities of a citizen of the United States, which 
are common to all the three descriptions of persons. When 



235 

an inhabitant of Louisiana is made a citizen of the United 
States, he becomes entitled to the " rights, advantages and 
immunities," of a citizen. He carries them with him wher- 
ever he goes — if he is in a state, he may add to them state 
privileges — if he is in a territory, he may enjoy the rights 
of an inhabitant of a territory — in either, or beyond the 
limits of both, he is still a citizen of the United States, and 
upon an equal footing with any other citizen. 

It has been argued indeed, that they are to be incorpora- 
ted into the union, and that this cannot be done without 
forming them into a state or states. Should we admit this 
argument to its full extent, it would leave us exactly where 
it found us, for as they are to be incorporated (by the 
express terms of the treaty) " according to the principles 
of the federal constitution," we should still be obliged to 
return to the constitution, to enquire upon what terms 
states are to be admitted. And certainly, the plain answer 
would be, that they are to be admitted upon the same terms 
as other territories in the United States. But the fallacy 
of the argument lies, in applying to the territory (which 
was ceded in full sovereignty) what was intended only for 
the inhabitants. Nothing more is necessary, to enable us 
to detect the fallacy, than to trace it to some of its conse- 
quences. What right, upon the construction contended for, 
had we to postpone the admission for a single day 1 Why, 
gentlemen will say, the territory had not the requisite 
number of inhabitants. But, no number of inhabitants is 
necessary, except by the practice under the constitution, 
and that same practice gives us certain other powers which 
need not now be mentioned, including the very one in 
question. Again, Sir, — according to this hypothesis, — 
what authority had we to divide this great territory ; why 
not admit it all as one state 1 They will say, it was too 
large for a single state. True ; but the constitution has 
not ascertained the size of a state, nor has it even been 
settled in practice, for we have states of all sizes, from 



236 

70,500 square miles, (Virginia) to 1548 square miles, (Rhode 
Island.) The truth is, and it is vain to attempt to disguise 
it, that the common understanding of all parties has long 
ago fixed the interpretation of the treaty upon a footing 
not now to be disturbed. This territory, like every other 
territory of the United States, is subject to the power of the 
Government, to be opened for sale ; to be settled, divided 
and subdivided, and regulated, according to its policy, and 
finally to be formed into states, and admitted when it may 
be deemed expedient. 

While I am upon this subject of the treaty, I wish to ex- 
amine it with a different view, and at the same time to show 
the enormous extent of the doctrine contended for, which 
will, I think, afford a strong argument in favour of the 
right of congress to impose the restriction. Whence did 
the treaty making power derive its authority to purchase 
lands, and freemen, and slaves ? From any express words 
of the constitution ? No. It must then be implied from 
what ? Either from the possession of sovereign authority, 
to which it is an incident — or, from the broad terms of 
the grant, which is to make treaties upon the ground that 
treaties may stipulate for a purchase of territory. It 
is then a sort of implied power. And what is next implied ? 
That the territory thus acquired is to be upon a different 
footing from any other territory of the United States : And 
that congress must form states of it, and must admit them. 
There, Sir, the implication all at once stops short. No 
conditions are to be imposed ; no terms offered ; no stipu- 
lations entered into, however salutary or even indispensably 
necessary for the welfare of the union. No — you are not 
even to require them to have their legislative and judicial 
proceedings in intelligible language. The whole policy of 
the nation is to yield to the views and interests of the inhab- 
itants of the territory, who are, notwithstanding, to become 
an integral part of the union, and have a full voice in your 
deliberations. What is your treaty making power then ? 



237 

Paramount to all the authorities of the nation ; paramount 
to the constitution itself; paramount even to the people. 

Try this principle by any practical test, and see where 
it will lead us. The United States have no power (it is 
contended) to prevent or limit slavery, and they have no 
power to stop migration. You have purchased a territory, 
nearly equal in extent to all the original states. A single 
plantation may inoculate the whole with this odious dis- 
ease. The 50,000 slaves in Louisiana may blacken the 
country from the Mississippi to the Pacific. What becomes 
of the free states then? For every five slaves, there are 
three votes, and the time may come, when the voice of 
the slaves, in the councils of the nation, will be louder than 
that of the freemen. Heaven forbid 1 for if it should, what 
will be the condition of those who live in the free states 1 
There is something humiliating in labour — in the labour of 
getting a living — and it is scarcely to be expected that the 
master of an hundred slaves should have any feelings in 
common with him, who earns his bread by his daily work. 
— What becomes of the compact of the constitution itself, 
settled, as it was, upon the basis of the existing states, and 
of the states to be formed out of the North West Territory, 
whose condition, as respects slavery, was irrevocably fixed ? 
The sense of that compact is entirely changed. Its form 
may remain, but the substance — the life of it, is gone for 
ever. The same principle, too, (for it is indefinite in its 
capacity) may be applied to future acquisitions. War or 
negotiation, conquest or treaty, might bring the island 
of Cuba within the limits of the union. But, I am satis- 
fied, and I hope the committee are satisfied, that the 
treaty has nothing to do with the question. I discard it 
altogether. 

1 will now with the leave of the committee, proceed to 
the remaining branch of this very interesting subject, or 
what is called the question of expediency. 

It is decreed that slavery shall be a very great evil — and 



238 

(as has been already remarked) one of its incidents is, that 
where it exists, it can never be fairly or freely discussed. 
It must be taken up at a certain point, which admits every 
thing that goes before, and among the rest (in a qualified 
sense) the lawfulness of its origin and existence. I will not 
disturb this arrangement, but I must be permitted to say 
that slavery is a great moral and political evil. If it be 
not, let it take its course — If it be a good, let it be encour- 
aged. If it be an evil, I am opposed to its further exten- 
sion. This is plain, simple, clear, intelligible ground. 

Most of those who have opposed the amendment, have 
agreed with us in characterizing slavery as' an evil and a 
curse, in language stronger than we should perhaps be at 
liberty to use. One of them only, the member from Ken- 
tucky, who last addressed the committee, (Mr. Clay) rather 
reproves his friends for this unqualified admission. He 
says, it is a very great evil indeed to the slave; but it is 
not an evil to the master — and he challenges us to deny 
that our fellow citizens of the south are as hospitable, as 
generous, as patriotic, as public spirited as their brethren 
of the north or east. Sir, they are all this, and even more. 
For some of the virtues enumerated, they are eminently 
and peculiarly distinguished; and I believe they are de- 
ficient in none of them. It has long ago been remarked, 
that the masters of slaves have the keenest relish for their 
own liberty, and the proudest sense of their own indepen- 
dence. It is natural that it should be so — the feeling is 
quickened by the degrading contrast continually before 
them. But it seems to me, that the concession with respect 
to slavery, modified as it is in appearance, is quite as broad 
as the unlimited admission of every one else who has spo- 
ken. It is an evil to the slave ; it is an evil founded in 
wrong, and its injustice is not the less because it is ad- 
vantageous to some one else. Every injury, from the least 
to the greatest, might find the same sort of mitigation. It 
is a very great evil to him who suffers, but it is no evil to 



239 

him who inflicts it. The same gentleman, however, has 
himself made the most unqualified concession ; for he said 
he would recommend to the people of Missouri to abolish 
slavery, and that in his own state he would favour a gene- 
ral emancipation, as soon as it should be practicable, which 
he surely would not do if it were not an evil. 

I beg leave, further, to say, that I do not consider this 
as a question of humanity, or a question of policy, or inter- 
est, or profit or ease — it is, (disguise or argue it as you will) 
a question of the extension of slavery. It is a question, too, 
not for the present only, but for future ages ; and the glo- 
rious example of our ancestors admonishes us to make the 
sacrifice, (if sacrifice it be) as we would have the blessings 
or the curses of posterity. Why should we spread an ac- 
knowledged evil ? Is there any other moral or physical 
evil that we should think it wise or expedient to treat in 
this way 1 Would you extend the ravages of an infectious 
disease 1 Would you cultivate the growth and enlarge the 
noxious influence of a poisonous weed ? Would any father 
so treat his offspring, even in this very instance ? If he 
were surrounded with slaves, whom he believed to be an 
injury and a curse to him, would he require his son at set- 
ting out in life, to relieve him, by taking upon himself a 
part of the odious burden ? 

Besides, it is an evil founded in wrong, and originating in 
our own choice. The extension of it, therefore, is not to 
be justified but by the most urgent and instant necessity, 
so evident, that every man will at once agree to submit to 
its imperious dictates. 1 reject all speculative, or probable, 
or modified, or remote necessity — that which resolves itself 
at last, when fairly analyzed, into matter of profit, of con- 
venience, or comparative political power. If there be 
doubt, it is decisive — even though there were considerable 
weight of probability in favour of the argument, I would 
decide against it. Has any one seriously considered the 
scope of this doctrine ? It leads directly to the establish- 



240 

ment of slavery throughout the world. The same reasoning 
that will justify the extension of slavery into one region, 
or country, will equally justify its extension to another. It 
leads, too, directly, to the re-establishment of the foreign 
slave trade, for it has a tendency to break down that great 
moral feeling which has been gradually making its way 
into the world, and to which alone, supported and encour- 
aged as it has been by the untiring exertions of humane 
and benevolent men, we are indebted, for the abolition of 
that detestable traffic, so long the disgrace of Christendom. 
To look upon slavery with indifference ; to witness its ex- 
tension without emotion ; to permit oneself even to calcu- 
late its advantages — Sir, the next step, and a very short 
one it is, may be readily imagined. There are parts of this 
country now, at this very moment, where the laws against 
the importation of slaves, with all their heavy denuncia- 
tions, are continually violated. It is notorious, that in spite 
of the utmost vigilance that can be employed, African ne- 
groes are clandestinely brought in and sold as slaves. This 
could not happen if there were an universal sentiment 
against the trade ; the existence of the illicit traffic, to any 
extent, however small, affords the fullest proof that in those 
parts of the union where it continues to be carried on, it 
meets encouragement from the feelings and the interests of 
some part of the community. Far be it from me to impute 
these feelings to any state, or to any considerable part of a 
state. But the sordid appetite exists, or such inhuman 
means would not be employed to gratify it. 

We are told, however, that it is not extension, it is only 
diffusion, that is to be the effect. 

I confess that I do not well understand the distinction. 
The diffusion of slaves, is an extension of the system of 
slavery with all its odious features, and if it were true (as 
it certainly is not) that their numbers would not be increas- 
ed by it, still, it would be at least impolitic. But, for what 
purpose, is this diffusion to be encouraged 1 To disperse 



241 

and weaken and dilute the morbid and dangerous matter, 
says one. To better the condition of the slaves by spread- 
ing them over a large surface, says another. A third tells 
us, that we cannot justly refuse to permit a man to remove 
with his family. A fourth comes directly to the question 
of interest, and his reason is, that land in the state of Mis- 
souri has been bought by individuals upon the faith of its 
being a slave state, and if we prohibit slavery there, these 
lands will fall in value. And in the rear of all these, comes 
an appeal to the public interest, in the shape of a sugges- 
tion, that slavery must be permitted in order to maintain 
the price of the public lands. 

I would ask gentlemen seriously to examine their hearts, 
and see if they are not deceiving themselves— I am sure 
they mean not to deceive others. Do they remember the 
arguments by which the slave trade was so long and so 
obstinately defended in England '( The triumph of human- 
ity there is quite recent, and the contest is a monument of 
the zeal and ingenuity that may be enlisted in a cause, 
which we all agree to have been utterly indefensible, and 
which no man having a respect for himself, would now 
have the hardihood to attempt to defend. The arguments, 
then employed, 1 am sorry to say, have too much resem- 
blance to those which are urged upon this question of ex- 
pediency. The debates in parliament, the memorials from 
Bristol and Liverpool, the representations of West India 
merchants, and ship owners, and owners of West India 
plantations, were filled with statements of the importance 
of the traffic to the navigation and trade, and revenue, and 
colonies, and all the other great interests of the kingdom. 
Yes, sir, and they undertook to strengthen their argument, 
by gravely asserting, that the African slave was really 
rescued from much greater misery, by putting him on 
board a slave ship, and carrying him in irons (if he hap- 
pened to survive) to the place destined for his perpetual 

31 



242 

imprisonment. — These things are familiar to every body, 
and they are now treated as they deserve to be. 

But it is only diffusion that is desired ! Is this a reason- 
able desire 1 Little more than thirty years have elapsed 
since the constitution was adopted. Two states of this 
union (South Carolina and Georgia) then insisted upon 
reserving, for twenty years, the privilege of supplying them- 
selves with slaves from abroad, and refused to come into 
the union unless congress were prohibited, during that 
time, from preventing importation. Congress were accord- 
ingly prohibited, and scarcely ten years have elapsed since 
the prohibition ceased. Can they reasonably ask already 
to be permitted to diffuse what they were then so anxious 
to possess? Are they so soon overburdened ? It cannot 
be, for the illicit trade is still carried on, and that would 
end at once if there were not a demand and a market. 

I may be told, and told with truth, that the other slave- 
holding states are not exposed to the same remark. Of Vir- 
ginia, especially, it gives me pleasure to be able to speak on 
this subject, with sincere respect. While yet a colony, she 
remonstrated against the introduction of slaves. One of 
the earliest acts of her government, after her independence, 
put an end to the trade: And it has always been understood 
to her honour, that in the convention, her voice and her most 
strenuous exertions were employed in favour of the immedi- 
ate abolition of the traffic. Still, Sir, with respect to any, or 
all the slave-holding states, I may be allowed to ask, is 
diffusion now necessary ? I think it is not. Look at the 
present price of slaves. Does that indicate an actual 
increase of their numbers to such an amount as to require 
diffusion 1 I am informed by a gentleman, upon whose 
accuracy I place great reliance, that from the adoption of 
the constitution to the present time, the price has been 
regularly advancing. I do not mean to say that it is as 
high now as it was a year ago. It was then, like every- 
thing else, affected by speculation. But taking average 



213 

periods, say of five or six years, there has been a regular 
and constant advance, manifesting a demand at least equal 
to the supply. 

Take another and a larger view. Look at the extent 
of territory, occupied entirely by freemen, and that which 
is occupied by freemen and by slaves. You will find, that at 
time of the last census, in 1810, 444,070, square miles inhab- 
ited by 2,333,330 free persons, and 1,138,300 slaves, giving 
a total of 3,471,696. At the same period, 3,650,101 free 
persons had for their portion 312,736 square miles. Such 
was then the comparative extent and population of the 
free states, and of the slave-holding states and territories, 
the latter with fewer inhabitants by almost two hundred 
thousand, possessing above one hundred and thirty thousand 
square miles of land more than the former, a tract of coun- 
try equal in size to the two largest states in the union. 
The population in the free states we know increases with 
greater rapidity than in the slave-holding states. At the 
present time it is not to be doubted, that the disparity is 
greater than it was in 1810 and more unfavourable to the 
free inhabitants. In making the distribution of future 
comforts, we ought to have at least, an equal eye to the 
latter, and they, I think from this statement, are most 
likely soon to want room to diffuse. 

If it were not dwelling too long upon this part of the 
subject, I would ask gentlemen to look also at the compar- 
ative statement of the population to the square mile, in 
the free states, and in the slave-holding states. They will 
find it in Dr. Seybert's work (page 45.) If I mistake not, 
the average of the former was 27, 56, and of the latter 15, 
36, applying the computation to the states contained in his 
table. These facts sufficiently answer the question, whe- 
ther the diffusion of the slave population is now necessary. 

I am fully convinced, however, that this idea of diffu- 
sion, (as distinguished from extension,) which is at present 
so great a favourite, is altogether founded in error. If the 



244 

amount of the slave population were fixed, and it could not 
be increased, it would no doubt be correct to say, that in 
spreading it over a larger surface, you only diffused it. 
But this is certainly not the case. We need not recur for 
proof or illustration to the laws that govern population. 
Our own experience unhappily shows, that this evil has a 
great capacity to increase ; and its present magnitude is 
such as to occasion the most serious anxiety. In 1790, 
there were in the United States G94,280 slaves ; in 1800, 
there were 889,881; and in 1810, 1,105,441. This is a 
gloomy picture. The arguments of gentlemen on the op- 
posite side admit that an increase will take place, for they 
are founded upon the belief that the time must arrive, when 
the slaves will be so multiplied as to become dangerous to 
their possessors. There are indeed no limits to the increase 
of population, black or white, slave or free, but those which 
depend upon the means of subsistence. By enlarging the 
space, generally speaking, you increase the quantity of 
food, and of course you increase the numbers of the peo- 
ple. Our own illustrious Franklin, with his usual sagacity, 
long ago discovered this important truth. " Was the face 
of the earth," he says, " vacant of other plants it might be 
gradually sowed and overspread with one kind only, as for 
instance, with fennel ; and were it empty of other inhab- 
itants, it might in a few ages, be replenished with one 
nation only, as for instance, with Englishmen." If this does 
not exactly happen, it is only because in their march, 
they are met and resisted by other plants and by other 
people, struggling, like themselves for the means of sub- 
sistence. 

By enlarging the limits for slavery, you arc thus prepar- 
ing the means for its indefinite increase and extension, and 
the result will be, to keep the present slave-holding states 
supplied to their wishes with this description of population, 
and to enable them to throw off the surplus, with all its 
productive power, on the West, as long as the country 



245 

shall be able and willing to receive them. To what extent 
you will, in this way, increase the slave population, it is 
impossible to calculate ; but that you will increase it there 
can be no doubt, and it is equally certain that the increase 
will be at the expense of the free population. 

The same gentleman to whom I have several times re- 
ferred before (Mr. Clay,) insists that this will not be the 
case. He says, that the ratio of increase of slave popula- 
tion shows, that its activity is now at the maximum ; and, 
as this implies the existence of the most favourable circum- 
stances, you cannot, by any change, accelerate the increase. 
He therefore infers, that if from twenty slaves in an old 
state, you take two, and transfer them to a new one, it is 
an actual diminution in the state from which they are 
taken to that amount, and putting the two states together, 
you simply change the place, but not alter the quantity. 
Supposing the fact to be, as it is here assumed to be, that 
the activity of increase is now at its maximum, it affords a 
most conclusive argument against the necessity of diffusion. 
It proves that there is ample room, and abundant means of 
subsistence, within the limits that now circumscribe the 
slave population, and that no enlargement of those limits is 
necessary. But, Sir, we must look a little into the future. 
Legislation on this subject, is not merely for the moment 
we occupy. The whole scope of the argument against us, 
is founded upon the belief, that the time must come when 
the slaves will be straitened in the territory, large as it is, 
which now confines them. When that time shall arrive, 
I presume it will not be denied, that their numbers will be 
increased, by enlarging the space for them, and then, cer- 
tainly, you will have extended slavery, in every sense. 

Will it be such a dispersion as the gentleman from Vir- 
ginia (Mr. Smyth) has talked of? If, like prisoners of war, 
(one of the cases he has mentioned,) they were to be de- 
tained for a limited time, and then set at liberty : Or, if 
they were to be mixed in society, and gradually lose their 



246 

distinctive character in the mixture, dispersion would be 
highly expedient and just. But, they are negroes and 
slaves — so they are to continue. — Their descendants are to 
be negroes and slaves, to the latest generation, and for ever 
chained to their present condition. — Nature has placed 
upon them an unalterable physical mark, and you have 
associated with it an inseparable moral degradation, either 
of which opposes a barrier not to be passed — to their coa- 
lescing with the society that surrounds them. They are, 
and for ever must remain distinct. 

And now, let me ask gentlemen, where this diffusion is 
to end ? If circumstandes require it, at present, will not 
the same circumstances demand it hereafter? Will they 
not, at some future time, become straitened in their new 
limits, however large 1 And what will you do then ? 
Diffuse again — and what then 1 Even this diffusion will 
have its limits, and when they are reached, the case is 
without remedy and without hope. For a present ease to 
ourselves, we doom our posterity to an interminable curse. 
But, we seem to forget, altogether, that while the slaves 
are spreading, the free population is also increasing, and 
sooner or later, must feel the pressure, which it is supposed 
may at some time be felt by the slaves. Where you place 
a slave, he occupies the ground that would maintain a free- 
man. And who, in this code of speculative humanity, 
making provision for limes afar off, is to have the prefer- 
ence, the freeman or the slave ? 

In this long view, of remote and distant consequences, 
the gentleman from Kentucky (Mr. Clay,) thinks he sees 
how slavery, when thus spread, is at last to find its end. 
It is to be brought about by the combined operation of the 
laws which regulate the price of labour and the laws which 
govern population. When the country shall be filled with 
inhabitants, and the price of labour shall have reached a 
minimum (a comparative minimum I suppose is meai 
free labour will be found cheaper than slave laboi 



I 



247 

Slaves will then be without employment, and, of course, 
without the means of comfortable subsistence, which will 
reduce their numbers, and finally extirpate them. This 
is the argument, as I understand it — When the period re- 
ferred to will arrive, no one can pretend to conjecture. 
Much less, would any one attempt to say, what number of 
slaves we shall have (with the previous encouragement 
proposed to be given to them) when this severe law shall 
begin to operate. But every prudent and feeling man will, 
I think, agree, without hesitation, that he would rather see 
the experiment tried upon a small scale than a large one 
— that it would be much more easily and safely conducted, 
and with much less suffering, in the present slave-holding 
states, than if it were to embrace in addition the whole of 
the great territory beyond the Mississippi. But, let me ask 
that gentleman, what he supposes will happen in the mean 
time? The diminished price of labour, and the reduced 
means of subsistence, are, according to this theory, first to 
operate upon the freemen, and then upon the slaves, and 
upon both by producing a considerable degree of misery. 
Does he suppose that they will patiently submit, and wait 
till the slow destruction arrives 1 The two great classes, 
kept distinct by your laws, would in such a struggle, like 
two men upon a single plank in the ocean, make a despe- 
rate effort each to secure to itself existence, by destroying 
the life of the other. When want and misery begin to 
press upon them, instinct will teach them how to seek re- 
lief, and deadly violence will be its agent. And what would 
then be the situation of the country 1 I shudder even to 
think of it. The present slave-holding states have a secu- 
rity in being surrounded by states that are free. But if 
the whole nation, or even a considerable part of it, were in 
the same condition, what security should we then have ? 

Again, sir, we are told, that the amendment in question 
will injure the rights of property, by depriving the owners 
of slaves of their unborn descendants, and by lessening the 



248 

value of their lands, bought upon the presumption that 
Missouri would be a slave state. Sir, we have no right to 
meddle with the question of slavery in the existing states. 
Their own laws must regulate the subjeet, and they may 
modify it as to them shall seem best. But, as a general 
position, independently of state provisions, it may safely be 
averred, that no man has a property in an unborn human 
being. We need not go far for the proof of this. The 
states that have abolished slavery, have done so by declar- 
ing that the children to be born should be free, which would 
have been beyond their power, if there had been a property 
in the children before their birth. This principle, however, 
is so well established, that it need not be further insisted 
upon. The depreciation in the value of land, is a conse- 
quence not likely to happen. The reverse will be the case. 
Let any one compare the prices and the improvement of 
land in the free states, and in the slave-holding states, and 
he will be satisfied, that in this, as in every other respect, 
Missouri will be a great gainer by the restriction. But, if 
it were otherwise, is the great policy of the nation in a point 
so vital — are the essential interests of justice and humanity, 
to yield to the pecuniary interests of a few individuals ? 
Can you always avoid doing a partial injury by your public 
measures? When war is declared, what is the effect upon 
the merchant ? When peace is made, how does it fare with 
the manufacturer ? You cannot even alter the rate of a 
duty, without affecting some interest of the community, 
either to its prejudice or benefit, and at last you must come 
to the consideration of the great question of national con- 
cern, to which minor considerations must give way. 

In the variety of claims, that have been pressed upon 
us, there is but a single one which deserves a moment's at- 
tention. It is that which arises out of the enquiry, so often 
repeated, will you not suffer a man to migrate with his fa- 
mily? — Those who have been accustomed to the labour and 
service of slaves, it is not to be denied, cannot at once 



249 

change their habits, without feeling, at least, a great deal 
of inconvenience. It is also true, that the associations 
which have been formed in families, cannot be broken up 
without violence and injury to both the parties; and in pro- 
portion as the authority has been mild in its exercise, will 
the transfer of it to other hands be disadvantageous, espe- 
cially to the servant. But, it is impossible to make a dis- 
crimination, or to permit the introduction of slaves at all, 
without giving up the whole matter. If you allow slavery 
to exist, you must allow it without limits. The consequence 
is, that the state becomes a slave state. Free labour and 
slave labour cannot be employed together. Those who go 
there, must become slave holders, and your whole system 
is overturned — Besides, if the limited permission did not, of 
itself, produce the evil, to an unlimited extent, (as it cer- 
tainly would) it is liable to abuses, beyond all possibility of 
control, which would inevitably have that effect. The num- 
bers of a family are not defined — the number of families of 
this sort, which a single individual may have, cannot be 
fixed. It is easy to see how under colour of such permission, 
a regular trade might be established, and carried on as 
long as there was any temptation of profit or interest. — 
This argument, however, has been pressed, as if a prohi- 
bition to go with slaves, was in effect a prohibition to the 
inhabitants of a slave-holding state to go at all. I cannot 
believe this to be the case. They may go without slaves; 
for though slaves are a convenience and a luxury to those 
who are accustomed to them, yet the inhabitants of the 
slave-holding states would hardly admit that they are in- 
dispensably necessary. Besides, they may take their slaves 
with them as free servants. But look at the converse. — 
The introduction of slavery, banishes free labour, or places 
it under such discouragement and opprobrium as are equi- 
valent in effect. You shut the country, then, against the 
free emigrant, who carries with him nothing but his indus- 
try. There are large and valuable classes of people, who 

32 



250 

are opposed to slavery, and cannot live where it is permit- 
ted. These too you exclude. The laws and the policy of 
a slave state, will and must be adapted to the condition of 
slavery, and, without going into any particulars, it will be 
allowed, that they are in the highest degree offensive to 
those who are opposed to slavery. It seems to me, sir, — I 
may be pardoned for so far expressing an opinion upon the 
concerns of the slave-holding states — it seems to me, that 
the people of the south have a common interest with us in 
this question, not for themselves, perhaps, but for those 
who are equally dear to them. The cultivation by slaves 
requires large estates. They cannot be parcelled out and 
divided. In the course of time, and before very long, it 
will happen that the younger children of southern families 
must look elsewhere to find employment for their talents, 
and scope for their exertion. What better provision can 
they have, than free states, where they may fairly enter 
into competition with freemen, and every one find the level 
which his proper abilities entitle him to expect 1 The hint 
is sufficient, I venture to throw it out for the consideration 
of those whom it concerns. 

But, independently of the objections to the extension, ari- 
sing from the views thus presented by the opponents of the 
amendment, and independently of many much more deeply 
founded objections, which I forbear now to press, there are 
enough, of a very obvious kind, to settle the question con- 
clusively. With the indulgence of the committee, 1 will 
touch upon some of them. 

It will be remembered, that this is the first step beyond 
the Mississippi — the State of Louisiana is no exception, for 
there slavery existed to an extent which left no alternative 
— It is the last step, too, for this is the last stand that can 
be made. Compromise is forbidden by the principles con- 
tended for on both sides. Any compromise that would 
give slavery to Missouri is out of the question. It is, there- 
fore, the final, irretrievable step, which can never be re- 



251 

called, and must lead to an immeasurable spread of slavery- 
over the country beyond the Mississippi. If any one faul- 
ter ; if he be tempted by insinuations, or terrified by the 
apprehension of losing something desirable — if he find him- 
self drawn aside by views to the little interests that are 
immediately about him — let him reflect upon the magni- 
tude of the question, and he will be elevated above all 
such considerations. The eyes of the country are upon 
him ; the interests of posterity are committed to his care — 
let him beware how he barters, not his own, but his chil- 
dren's birth-right, for a mess of pottage — The consciousness 
that we have done our duty, is a sure and never failing 
dependence. It will stand by us and support us through 
life, under every vicissitude of fortune, and in every change 
of circumstances. It sheds a steady and a cheering light, 
upon the future as well as the present, and is at once a 
grateful and a lasting reward. 

Again, Sir, by increasing the market for slaves, you 
postpone and destroy the hope of extinguishing slavery by 
emancipation. It seems to me, that the reduction in value 
of slaves, however accomplished, is the only inducement 
that will ever effect an abolition of slavery. The multipli- 
cation of free states, will at the same time give room for 
emancipation, or, to speak more accurately, for those who 
are emancipated. This, I would respectfully suggest, is 
the only effectual plan of colonization — but it can never 
take effect while it is the interest of owners to pursue their 
slaves with so much avidity, or to pay such prices for them. 
Increase the market, and you keep up the value — increase 
the number of slave-holding states, and you destroy the 
possibility of emancipation, even if every part of the union 
should desire it. You extend, indefinitely, the formidable 
difficulties which already exist. 

Nor does the mischief stop here. All liberal minds and 
all parts of the union, have with one voice agreed in the 
necessity of abolishing that detestable traffic in human 



252 

flesh, the slave trade — the foreign slave trade : But, reject 
the amendment on your table, admit Missouri without 
restriction, and you will inevitably introduce and establish 
a great inland domestic slave trade, not, it is true, with all 
the horrors of tbe middle passage, nor the cold blooded 
calculation upon the waste of human life in the seasoning, 
but still with many of the odious features, and some of the 
most cruel accompaniments of that hateful traffic From 
Washington to St. Louis, may be a distance of one thousand 
miles. Through this great space, and even a much great- 
er, you must witness the transportation of slaves, with the 
usual appendages of hand-culls and chains. The ties of 
domestic life will be violently rent assunder, and those 
whom nature has bound together, suffer all the pangs of an 
unnatural and cruel separation. Unfeeling force, stimulated 
by unfeeling avarice, will tear the parent from the child, 
and the child from the parent — the husband from the wife, 
and the wife from the husband. We have lately witnessed 
something of this sort, during the period of high prices. 
Gentlemen of the south, particularly those from Virginia, 
who speak of their slaves as a part of their family, would 
start at this — They would reject, with scorn and indigna- 
tion, even a suggestion, that they were to furnish a mar- 
ket for the supply of slaves to the other states. I can 
well believe, that in families where the relation has long 
subsisted, there are feelings that would revolt at such a 
thought — feelings that have considerably rnodilied this 
severe condition, and grown out of the associations it has, 
in a long course of time, produced. But, can any one tell, 
what cupidity may win or necessity extort ? No man is 
superior to the assaults of fortune ; and, if he were, the 
stroke of death will surely come, and break down his pater- 
nal government, and, then, the slave dealer, whom he would 
have kicked from his inclosure, like a poisonous reptile, 
presents himself— to whom? — He cannot tell. Thoughts 
like these, have often, I doubt not, produced the liberation 



253 

of slaves. If gentlemen question our sincerity, let them 
consider at what period of life it is, that emancipation most 
frequently takes place. It is at that serious moment, when 
men sit down to settle their worldly concerns, and, as it 
were, to take their leave of the world. Then it is, by the 
last will, to take eilcct when their own control is ended, 
that owners restore their slaves to freedom, and, by what 
they certainly consider an act of justice, surrender them to 
themselves, rather than leave them to the disposal of they 
know not whom. Let gentlemen from the south reflect on 
this. The public sentiment, upon the subject of slavery, is 
every where improved, and still improving. It has already 
destroyed that monstrous inhumanity called the slave trade. 
I fear that such a measure, as is now proposed by the oppo- 
nents of the restriction, would not merely check and retard 
its progress. I seriously fear that it may gradually work 
an entire change. The effects are not to be contemplated 
without the deepest anxiety. 

The political aspect of the subject is not less alarming. 
The existence of this condition among us, continually en- 
dangers the peace and well being of the union, by the irri- 
tation and animosity it creates betwen neighbouring states. 
It weakens the nation while it is entire : And if ever a 
division should happen, can any one reflect without horror, 
upon the consequences that may be worked out of an 
extensively prevailing system of slavery ? We are told, 
indeed, both in the house and out of it, to leave the matter 
to Frovidence. Those who tell us so, are nevertheless 
active and eager in the smallest of their own concerns, 
omitting nothing to secure success. Sir, we are endowed 
with faculties, that enable us to judge and to choose — to 
look before and after, however imperfectly. When these 
have been fairly and conscientiously exerted, we may then 
humbly submit the consequences, with a hope and belief, 
that, whatever they may be, they will not be imputed to 
us. The issue of our counsels, however well meant, is not 
in our hands. But, if for our own gratification, regardless 



254 

of all considerations of right or wrong, of good or evil, we 
hug a vicious indulgence to our bosom, until we find it 
turning to a venomous serpent, and threatening to sting us 
to the heart, with what rational or consoling expectation 
can we call upon Providence to tear it away and save us 
from destruction. 

It is time to come to a conclusion. I fear I have already- 
trespassed too long. In the effort I have made to submit to 
the committee my views of this question, it has been im- 
possible to escape entirely the influence of the sensation 
that pervades this house. Yet, I have no such apprehen- 
sions as have been expressed. The question is indeed an 
important one ; but its importance is derived altogether 
from its connection with the extension, indefinitely, of negro 
slavery, over a land which I trust Providence has destined 
for the labour and the support of freemen. I have no fear 
that this question, much as it has agitated the country, is 
to produce any fatal division, or even to generate a new 
organization of parties. It is not a question upon which 
we ought to indulge unreasonable apprehensions, or yield to 
the counsels of fear. It concerns ages to come, and mil- 
lions to be born. It is, as it were, a question of a new poli- 
tical creation, and it is for us, under Heaven, to say, what 
shall be its condition. If we impose the restriction, it will, 
I hope, be finally imposed. But, if hereafter it should be 
found right to remove it, and the state consent, we can 
remove it. Admit the state, without the restriction, the 
power is gone forever, and with it are forever gone all the 
efforts that have been made by thenon slave holding states, 
to repress and limit the sphere of slavery, and enlarge and 
extend the blessings of freedom. With it, perhaps, is gone 
forever, the power of preventing the traffic in slaves, that 
inhuman and detestable traffic, so long a disgrace to Chris- 
tendom. In future, and no very distant times, convenience 
and profit, and necessity, may be found as available pleas 
as they formerly were, and for the luxury of slaves, we 
shall again involve ourselves in the sin of the trade. We 



255 

must not presume too much upon the strength of our reso- 
lutions. Let every man who has been accustomed to the 
indulgence, ask himself if it is not a luxury — a tempting 
luxury, which solicits him strongly and at every moment. 
The prompt obedience, the ready attention, the submissive 
and humble, but eager effort to anticipate command — how 
flattering to our pride, how soothing to our indolence ! To 
the members from the south, I appeal to know whether 
they will suffer any temporary inconvenience, or any spec- 
ulative advantage to expose us to the danger. To those 
of the north, no appeal can be necessary. To both, 1 can 
most sincerely say, that as I know my own views on this 
subject to be free from any unworthy motive, so will I be- 
lieve, that they likewise have no object but the common 
good of our common country, and that nothing would have 
given me more heartfelt satisfaction, than that the present 
proposition should have originated in the same quarter to 
which we are said to be indebted for the ordinance of 1787. 
Then, indeed, would Virginia have appeared in even more 
than her wonted splendor, and spreading out the scroll of her 
services, would have beheld none of them with greater 
pleasure, than that series which began, by pleading the 
cause of humanity in remonstrances against the slave trade, 
while she was yet a colony, and, embracing her own act of 
abolition, and the ordinance of 1787, terminated in the 
restriction on Missouri. Consider, what a foundation our 
predecessors have laid ! And behold, with the blessing of 
Providence, how the work has prospered ! What is there, 
in ancient or in modern times, that can be compared with 
the growth and prosperity of the states formed out of the 
North West Territory '! When Europeans reproach us 
with our negro slavery ; when they contrast our republi- 
can boast and pretensions with the existence of this condi- 
tion among us, we have our answer ready — it is to you we 
owe this evil — you planted it here, and it has taken such 
root in the soil, we have not the power to eradicate it. 
Then, turning to the west, and directing their attention to 



256 

Ohio, Indiana and Illinois, we can proudly tell them, these 
are the offspring of our policy and our laws, these are the 
free productions of the constitution of the United States. 
But, if beyond this smiling region, they should descry ano- 
ther dark spot upon the face of the new creation — another 
scene of negro slavery, established by ourselves, and spread- 
ing continually towards the further ocean, what shall we 
say then ? No, sir, let us follow up the work our ances- 
tors have begun. Let us give to the world a new pledge 
of our sincerity. Let the standard of freedom be planted 
in Missouri, by the hands of the constitution, and let its 
banner wave over the heads of none but freemen — men 
retaining the image impressed upon them by their Creator, 
and dependant upon none but God and the laws. Then, 
as our republican states extend, republican principles will 
go hand in hand with republican practice — the love of li- 
berty with the sense of justice. Then, sir, the dawn, 
beaming from the conslitution, which now illuminates Ohio, 
Indiana and Illinois, will spread with increasing brightness 
to the further west, till in its brilliant lustre, the dark spot 
which now rests upon our country, shall be forever hid 
from sight. Industry, arts, commerce, knowledge, will 
flourish with plenty and contentment for ages to come, and 
the loud chorus of universal freedom, re-echo from the 
Pacific to the Atlantic, the great truths of the Declaration 
of Independence. Then too, our brethren of the south, if 
they sincerely wish it, may scatter their emancipated slaves 
through this boundless region, and our country, at length, 
be happily freed forever from the foul stain and curse of 
slavery. And if (may it be far, very far distant !) intestine 
commotion — civil dissent ion — division, should happen — we 
shall not leave our posterity exposed to the combined hor- 
rors of a civil and a servile war. If any man still hesitate, 
influenced by some temporary motive of convenience, or 
ease, or prolit, I charge him to think what our fathers have 
suffered for us, and then to ask his heart, if he can be faith- 
less to the obligation he owes to posterity ? 



SPEECH, 

DELIVERED IN THE HOUSE OF REPRESENTATIVES, MARCH 
7TH, 1822, ON THE BILL TO ESTABLISH AN UNIFORM 
SYSTEM OF BANKRUPTCY THROUGHOUT THE UNITED 
STATES. 



MR. CHAIRMAN", 

Tt is my duty now to endeavour to reply to the prin- 
cipal objections which have been made to the passage of 
this bill.* After so much discussion, and at this late stage 
of the debate, I would gladly dispense with its performance 
and relieve the House from further trespass upon its pa- 
tience. But, this would not be just to the very interesting 
subject before us, nor to those who have so anxiously 
besought our attention to it ; and I must therefore ask the 
indulgence of the house, while, as rapidly as may be in my 
power, I bring into their view, the answers — satisfactory 
ones I hope they will be found — to the arguments of those 
who are opposed to the bill. 

I can say with truth, what probably can scarcely be said 
by any other member of the house — that I have listened, 
attentively, to every speech that has been made on either 
side of the question, with only one exception, and that was 
owing to circumstances over which 1 had no control, and 
which I very much regret. I have listened with pleasure, 
and with instruction, too, and with an increased conviction 
of the expediency, necessity, and justice of the measure 
proposed. If doubt had remained in my mind, it would 

* Mr. Sergeant was chairman of the committee on the Judiciary who 
reported the bill. 

33 



258 

have been entirely dispelled by the debate : For, the more 
deeply and thoroughly the subject is examined, the more 
obvious does its importance become, and the more plain 
and imperious our duty towards all classes of our fellow 
citizens, but especially towards those who are immediately 
interested in the decision. Indeed, I am fully persuaded, 
that nothing is wanting but a close and candid examination 
of the true nature and merits of the case, with a moderate 
sense of what liberal justice, and the true interests of soci- 
ety demand, to remove the prejudices, and effectually silence 
the objections, which have heretofore prevented the pas- 
sage of a bankrupt law. 

In the remarks I am about to offer, it will be necessary, 
occasionally, to touch upon ground already occupied by 
members, who have preceded me in the debate. I will 
do it as little as possible, and when I am obliged to repeat 
what has been already advanced, it will not be from want 
of respect for those who have gone before me, nor from any 
hope of being able to present the same topics with equal 
strength and force, but only for the sake of their necessary 
connexion with other views. 

The first class of objections to be noticed, for which we 
are indebted chiefly to the gentleman from Virginia, (Mr. 
A. Smyth,) are not to the principle of a bankrupt law, but 
to the details of this particular bill. I must submit to the 
judgment of the house, how far such a course of observation, 
was correct, or just, or likely to conduce to a fair investi- 
gation, at this stage of the proceedings, and upon the pre- 
sent motion, which was made for the avowed purpose of 
trying the sense of the house, upon the broad question, 
whether wc would or would not pass a bankrupt law, under 
any modifications whatever; in other words, whether it 
was fit and proper at all to exercise the power given by 
the constitution. The particular provisions of the bill, are 
not open to amendment, upon such a motion ; they arc not 
within the legitimate range of its inquiry ; and such objec- 



259 

tions are really calculated only to embarrass and prolong 
the discussion, by producing impressions, which, if they are 
suffered to remain, might seriously affect the minds of those 
who have not carefully examined the bill, while the at- 
tempt to answer them now, imposes upon the friends of the 
measure, a burthen they ought not to be required to bear, 
and upon the house, a tax the more severe, as it is not, and 
cannot be productive of any profitable result. If the 
details of the bill are defective, let their defects be pointed 
out, at the proper time, and let us then endeavour to amend 
them. 

Instead however, of following the course which is usual 
upon such occasions, an attempt has been made to bring 
odium upon the bill, by a strong exhibition of the supposed 
deformity of its parts. The member from Virginia, (Mr. 
A. Smytb) has indeed characterized it as a monster, which, 
if it were as bad as he described it to be, it would be justi- 
fiable to strangle at its birth : which ought not to be suf- 
fered to have a chance to breathe the breath of life. He 
said, " that it was calculated to sacrifice the liberties of 
the people, to destroy personal security, and the security 
of property, to abolish the mild and equitable systems of 
jurisprudence, which the wisdom and policy of the states 
have ordained," in short, that it would be productive of 
every sort of mischief, and nothing but mischief. That 
gentleman has, indeed, been extremely, I had almost said 
excessively liberal, in acquitting me of any share in this 
atrocious attempt upon the liberty and laws of our country, 
by supposing that not a line of the bill has proceeded from 
my pen. While I thank him for his kind intentions, it is 
impossible for me to avail myself of the concession. For if 
it were literally founded in fact, and I cannot say that it is, 
yet, having adopted and advocated the bill, not once, but 
repeatedly ; not hastily, but upon full reflection, and feel- 
ing as I now do, that if my most anxious wishes and 
exertions for its passage, could ensure its success, it would 



260 

unquestionably succeed, I cannot, and ought not, and do 
not desire, to be deemed less accountable, than the original 
framers of the bill whoever they may have been. As to 
those who have now, and upon former occasions, supported 
it in this house, and in the other, I am willing to stand in 
the same line with them ; they are men, with whose 
names I deem it an honour to have mine associated. 

A member from South Carolina, (Mr. Mitchell,) has 
urged it as an argument against the bill, that it has 
been floating, as he expressed it, for three or four years, 
between the two houses, which he seemed to think could 
not have happened, if it had really deserved their conside- 
ration. He was mistaken — it has been much longer soliciting 
the attention of congress. A bill, substantially the same, was 
reported at least as long ago as the year 1813. From that 
time to the present, the subject has been frequently brought 
into view. In 1817, it underwent considerable discussion. 
It has since received some amendments, and at the last 
session it passed the senate, exactly in the form in which 
it is now before this house. To what, then, was this great 
delay attributable 1 How did it happen that the call upon 
congress, to exercise a power expressly given to them by the 
constitution for the benefit of our fellow citizens, so fre- 
quently and importunately made, and under circumstances, 
as strong as could possibly have been contemplated by the 
framers of that instrument, has hitherto been made in 
vain ? The answer is obvious. It is because, those who 
more particularly stand in need of the law, and petition for 
its enactment, and those for whose relief it is designed, are 
not represented here ; their wants and their wishes are 
not felt, and, unfortunately, cannot be made intelligible. 
Who are the petitioners 1 They are, generally, merchants. 
When we hear that class of our fellow citizens, spoken of 
as they have been in this debate ; when we are told as we 
have been, by one member, (Mr. Mitchell) that the mer- 
chant is a man, without a country, and without a home ; 



261 

who has no settled interest or stake in society ; who, to use 
his very language, is, " of every country and of no country, 
indifferent whether the sun rises on him to the north, or to 
the south of the equator," can we be at a loss to account 
for the difficulty and delay, which this measure has encoun- 
tered ? Can we be suprised, that where such unreasonable, 
and I must say, unjust prejudices are found, against a most 
respectable and honourable class of the community, a deaf 
ear should be turned to their complaints, and they should 
be dismissed, with cold indifference, or contemptuous 
neglect 1 I am now addressing, on their behalf, a body 
composed almost entirely of professional men and planters, 
who do not want the aid of a bankrupt law for themselves, 
and who, I can sincerely say, I hope may never stand in 
need of its relief; may never know from experience, the 
wasting heart-sickness and despair of the unfortunate man, 
who can obtain no relief. Thus circumstanced — placed 
beyond the reach of this kind of misfortune themselves, 
and seldom, perhaps never, witnessing it others, they do 
not realize the force and extent of the evils which this 
bill is intended to remedy. The subject does not come 
home to their business and bosoms, but is a mere matter 
of cold speculation. When the friends of the bill, endeav- 
our to press it upon their hearts, and their minds, by plain 
and unexaggerated statements, we are supposed to employ 
the pencil of fiction, only because they have not themselves 
seen the originals. If gentlemen, who are not conversant 
with the operation of the existing laws, will not give us 
credit for the facts we state ; if they will not believe the 
statements of those who have seen the evils and sufferings, 
which this bill is intended to remove, it would be vain, that 
the picture, faithful as it is, should be presented anew, or 
that other scenes of evil and of misery, should be pour- 
trayed. But I beg them to be assured, that this class of 
ruined merchants, is not what it has been supposed to be, 
by some who have spoken on this question. Among them 



2G2 

are to be found the most high minded and honourable 
men ; men who have been eminently useful, men who have 
been employed, and beneficially employed in the councils of 
the nation, and who are now withering under the blast 
of unmerited misfortune ! 

Nor do gentlemen give due attention to the distinction, a 
most important and plain distinction, so well enforced by 
my colleague, (Mr. Hemphill) between the occupation of a 
merchant or trader, and that of almost any other class in 
the community. The capital of the professional man, is 
in his talents and acquirements, which cannot be taken 
from him. The planter's is in the soil, and remains, under 
every vicissitude, if he be reasonably prudent, firm as the 
foundations of the earth. The laws secure to him its 
enjoyment. He may lose a crop, the profits of a year, at 
most; the capital is sure, immoveable, and imperishable. 
Neither of them has any just occasion to deal in credit, to 
become creditors or debtors to any considerable amount — 
to involve himself in the fate of others, or to become liable 
for debts, beyond his means to pay. Such embarassment 
is, as to them, in general, the evidence of imprudence at 
least, if not of something worse. How different is the 
necessary, I may say inevitable condition of the man en- 
gaged in trade ? His whole capital is continually at risk, 
exposed to the danger of the winds and the waves, depend- 
ent upon the good fortune, and prudence of others, with 
whom he is connected ; placed by the very nature of its 
employment, beyond his control, and liable to be swept 
away, at every moment, without his fault, and to his utter 
ruin. Political changes, too, which press lightly in compar- 
ison, upon other members of the community, may be and 
frequently arc, to him, overwhelming. The transition from 
peace to war, and even the return from war to peace, 
which comes dressed in smiles to every one else, may 
prove to the merchant, a most destructive calamity. Non- 
intercourse, embargo, every sort of restriction or political 



2G3 

change, may fall with irresistible weight upon him. Mea- 
sures of finance, too, a rapid change in the circulation (and 
no nation, probably, ever experienced so sudden and great a 
reduction, as we have passed through) by their effect upon 
prices and upon the value of money, enter with uncontrol- 
lable fury, into the affairs of the merchant, disconcerting 
every thing, overturning all his schemes, and changing the 
whole face of his concerns. The first shock to his credit 
is fatal ; for it is also true, that this man, who has so much 
to meet and to endure, rests all his hopes and prospects, 
upon so delicate a foundation as the daily ability, continually 
manifested, to comply with his engagements to the letter. 
Touch that, and he is irretrievably gone. He has nothing 
with which to begin again, but the uncertain forbearance 
of his creditors. 

Here is a broad ground, laid open to the examination of 
every one. Unless our opponents are prepared to say, 
that there shall be no such thing as commerce, no mer- 
chants, no credit, no system of severe and rigid punctuality, 
to regulate the movement of the machine of trade, they 
must admit with the gentleman from South Carolina, (Mr. 
Lowndes,) that these circumstances afford a motive for 
peculiar legislation, such as I must again insist, every civi- 
lized and commercial nation, has thought fit to adopt. 
Supposing, then, that notwithstanding the authority of the 
constitution in favour of such a measure, we are still bound, 
as oar opponents have insisted, to maintain and prove its 
necessity, what more can be required than the general 
views that have been presented? To carry them into 
detail ; to insist upon the actual state of things, to describe 
the evils that continually arise from the want of such pro- 
visions, must be wholly unavailing, unless they will give us 
credit for our facts, and if they do that, enough has already 
been stated. As long as they adhere to the opinion, that it 
is all the creation of fancy, any effort to reason from what 
is stated, must terminate in an useless waste of time. 



264 

It is with great reluctance that 1 shall enter, at this 
stage of the discussion, into a vindication of the details of 
the bill. But it seems to be indispensably necessary to 
relieve them, by a proper explanation, from the charges 
that have been made. Otherwise, if the bill should fail, it 
might be supposed to be owing to carelessness, negligence, 
or ignorance in its construction ; and its friends would have 
the extreme mortification of losing the great object they 
have in view, from their own fault. I should be exceed- 
ingly distressed, if the failure could be justly attributed to 
any such cause. I am sure it could not, for I have heard 
no objections made, by those who arc in favour of a bank- 
rupt law in any shape in which it can be framed. Those 
who offered them, have exercised their ingenuity, not to 
make it better, but to make it worse ; or, which is the 
same thing, to give it the worst appearance possible, and to 
bring discredit and odium upon it by every thing that is 
calculated to appeal to pride, to passion, to interest, and to 
prejudice. 

It is is not necessary again to appeal to the house, whe- 
ther this is a fair course of proceeding, or ought to receive 
their countenance. But to test the sincerity of those who 
have made objections, we invite them to take the bill into 
their own hands — to bring forward their amendments, to 
show, candidly and distinctly, in what particulars it may 
be beneficially altered ; give us, if they will, an entirely 
new system, provided, the two great points of security to 
the creditor, and relief to the debtor, arc preserved. I 
have no feeling of concern for any thing else, and I think I 
can answer for all who have supported the bill, that they 
will be ready to concur in any proper amendment — that 
they will unequivocally evince their attachment, whoever 
may claim the parentage. They will only ask to spare its 
life — let them know that the object of their solicitude may 
live, and they will readily yield the contest about its cus- 
tody. If gentlemen who have made objections will not do 



265 

so, we shall be constrained to believe, that it is because 
they have not the disposition to do justice to the measure, 
and to our fellow citizens who have asked for it. 

At the proper time, I shall myself venture to propose 
two amendments, and there is one, it is understood, will be 
proposed, to which I shall certainly not object. I mean to 
bring forward a provision to enable a man in failing cir- 
cumstances, to apply for a commission of bankruptcy, re- 
taining, however, the compulsory power, in cases where no 
such application is made. The design of the provision 
would be, to enable the debtor to attain by direct and per- 
mitted means, what he would otherwise be obliged to ac- 
complish by the irregular machinery of a concerted com- 
mission. The end would be (he same, but a concerted 
bankruptcy is liable to the objection, that it is founded on 
an unlawful fiction. Another provision proposed, will be 
for the purpose of obtaining authentic evidence of the prac- 
tical operation of the law, by requiring the commissioners 
to make frequent returns, at stated times, of the cases 
which shall occur. The amendment alluded to, as likely 
to come from another quarter, is to enlarge the description 
of persons who may be voluntary bankrupts, or, in other 
words, who may have the benefit of the law. If the gen- 
tleman from South Carolina, (Mr. Lowndes,) who has 
strongly stated and maintained the necessity and policy of 
a bankrupt law, will concur with the friends of the bill, in 
the effort to amend it, many, if not most of his objections, 
may certainly be removed. To wait until we can conci- 
liate the opinion of every member of the house, upon every 
part of a bill like this — until we shall all agree, not only 
upon the principle, but upon every subordinate enactment 
— is to postpone it indefinitely — it is to mock the hopes of 
those who are anxiously looking for the measure, by keep- 
ing it forever before their eyes, but never placing it within 
their reach. Something must be yielded upon minor points 
of no great importance. 

34 



266 

Let us remember how long such a bill has been before 
us. For nearly ten years, I believe, it has in some way or 
other, been on our tables. Five years ago, it was discussed 
in this house. Last session it passed the senate, and came 
to us, too late, it was then said, to receive a deliberate ex- 
amination. Sometimes it is too early ; sometimes too late ; 
sometimes it is too much discussed, and the house from 
mere weariness suffer it to drop from their hands by an 
indirect decision ; then again, there is not time enough for 
discussion, and it is put by for a future occasion. And at 
last, when it is seasonably brought forward and we have 
been weeks engaged upon it, with pressing memorials, 
urging and beseeching us for the passage of the law, we 
find out that this is not exactly the law that it ought to be. 
And what then 1 The natural answer would seem to be, to 
make it what it ought to be, to expunge what is wrong, 
and endeavour to insert what you think right. Shall we 
ever be better prepared than we now are 1 — But no ; we 
are to wait for some undefined time, until, by some undefi- 
nable means, a perfect work shall be presented to our ac- 
ceptance, so perfect, indeed, as to admit of neither objec- 
tion nor improvement. I can only say, that if it correspond 
with this description, it will not come from human hands, 
and it must not be subjected to human criticism, or it can 
never be free from a mixture of evil ; and if it were, the 
presumptuous wisdom of man would not suffer it to escape 
the imputation of defect. 

If we are satisfied that the measure is necessary, let us 
make the best bill we can, and be satisfied with the sinceri- 
ty and the reality of our exertions. Experience is a great 
teacher, and will point out to us defects, and their remedies, 
with far greater certainty than speculative and conjectural 
reasoning. Let us begin, and afterwards improve, if neces- 
sary ; but let us begin. 

I am obliged, however, to say, that justice has not been 
done to this bill, and I feel mvself bound to endeavour to 



267 

vindicate it from the heavy charges that have been brought 
against it, especially by the gentleman from Virginia, (Mr. 
A. Smyth.) I am well aware, that the reply to his criti- 
cisms, some of them very minute, will be tedious and unin- 
teresting. But the house will bear in mind, that long as 
the bill has been before them, and long as it has been 
under discussion, there are probably very few of the mem- 
bers who have examined it throughout, and collated its 
different provisions. This is one of the most serious dif- 
ficulties its advocates have to encounter. From its neces- 
sary length ; from the indifference felt about it by many, 
and from other causes, it is imposssible to obtain for it a 
close and careful attention. We are much indebted to any 
one who will be at the pains taken by the gentleman from 
North Carolina, (Mr. Sawyer,) to examine and unfold its 
different parts. 

From similar causes, operating even more powerfully, 
the public is likely to know little of the details, as the re- 
monstrance from New York, which the gentleman from 
New York, (Mr. Golden,) has shewn to be founded in error 
and misconception — most fully proves. Under these cir- 
cumstances, objections, though destitute of real foundation, 
or exaggerated greatly beyond their natural bearing, are 
apt to make a strong impression, especially when they come 
from a gentleman of as much research as the member from 
Virginia, (Mr. A. Smyth.) who seldom offers himself to the 
house without due preparation, and delivers his opinions 
with a deliberate gravity that cannot fail to have effect, 
when he speaks upon a subject with which his professional 
pursuits are supposed to have made him acquainted. What 
then will he say, if I venture now to tell him, that there is 
scarcely one of the specific objections, upon which he has 
rested his general denunciation of the bill, which is sup- 
ported in point of fact ? The cause of some of his errors is 
obvious. He has been studying the bankrupt law of Eng- 
land, instead of the bill upon the table, and has been insist- 



268 

[ng upon objectional provisions in the former, without suffi- 
ciently < * x .- 1 1 1 1 1 1 1 i 1 1 ^ how far they arfi correi ted by the latter. 
Thus (to follow his own order,) he objected, that the de- 
scription of a trader, who might be a bankrupt, was too 
broad, and would comprehend ev< ry person who should 
buy and sell, in however small a quantity, though buying 
and selling wai nol his occupation ; and he dwell upon the 
whimsical distinctions produced by this ambiguous descrip- 
tion. A bleacher, he said, — and I thank him for selecting 
thai illustration, cannot be a bankrupt, because he only 
bestows his labour; a dyer may, because he buys the dying 
drugs. Thai is the law of England, but it is not ihis bill, 
as he Ikis himself, I believe, in very general terms, admit- 
ted. Why then introduce it at all? Those who did not 
carefully listen, and carefully examine, too, might be led 
into the error of supposing, that the same objectionable 
ambiguity remained in the bill, and that it was so inar- 
tificially constructed as to copy servilely even acknow- 
ledged defects in the law of England. Whereas, in truth, 
all these things are carefully, and scrupulously, and I 
believe, adequately guarded against hy the proviso at the 
mil of the section.* I beg the particular attention of the 
member from \ irginia to that proviso, and call upon him, 
if he thinks there is any further amendment necessary, to 
aid ns in making il ; il not, to abandon this objection as 
untenable. 

Me has fallen into another error of the same sort, lie 
seems, indeed, to have studied very diligently, the English 
bankrupt law, hut not to have paid sufficient attention to 
this bill, [f, said he, a servant, by the orders of his mas- 
ter, deny his master to a creditor, the master may be made 
a bankrupt, and is irretrievably ruined, even though he 

* ,l If their living is sub tantially gotten by mechanical labour, th h 

with some mixture of buying and Belling, they shall not as such only he 
deemed oi taki n to be within the provisions of this bill." 



■ ■ • This is i 

■ 



. - 



: 
• - 



270 

bead has remarked, thai ii doesnol provide for issuing com- 
missions of bankruptcy against corporations; a very im- 
portanl suggestion, indeed, well deserving consideration, 
but relating to a subject so peculiar, and so distinct from 
what this bill contemplates, that it would require an en- 
tirely different set of provisions. We have enough to deal 
with at present, and when the matter in hand is disposed 
ol\ it" an) one will propose a law for corporations, (which 
it is competent to Congress to enact,) he will, it is to he 
hoped, be met with a Liberal spirit, and a disposition to give 
him every possible aid. Hut it here occurs to me, that the 
same gentleman made a remark, which puts us at issue 

upon a matter of fact, ami I feel a little tenacious, because 

it may be regarded as a tact of some consequence, and 
as such it was formerly presented to the notice oi the 

house: it is with resped to (he nature ot" the law of Hol- 
land. He s,i\s, before the Code Napoleon was introduced 
into Holland, they had no bankrupt law. hut only the cessio 
bonorum, which merely discharged the person. The infer- 
ence is, that in the times ot' their greatest commercial pros- 
perity, they hail no bankrupt law. lie has quoted tor this 
a passage in Cooper's Bankrupt Law, who cites the opinion 
ot' Lord Chancellor llardwicke. expressed in a case decided 

in nil. The case is reported in A.tkyns, where the Lord 

Chancellor is only made to say, that he did not take it io 
he the law ot' Holland, that the effects were discharged as 
well as the person. There was another point in the case, 
which was sufficient tor its decision, and this, which is now 
in question, was not ot much importance, and therefore, 
probably, not verj carefully inquired into. But if the mem- 
ber from Virginia had extended his view only a little fur- 
ther, in the same book from which he quoted (Cooper's 

Bankrupt Law.) in the same page, in the following para- 
graph, and the sentence immediately following the one he 

read, he would have found Lord Mansfield stating just the 
reverse, that is to say, that the Dutch law did give a ilis- 



271 

charge valid in England, and of course, a discharge of the 
debt. Ho much for the authority ; hut, if he still doubt, 1 
will refer him to Ueawe's Lex Mercatoria, where he will 
find under Hie head of bankruptcy, the old law of Holland, 
and a short history of its introduction. The proceedings 
were carried on before a tribunal called the Chamber <•(' 
Desolate Estates, and, as I have heretofore: stated, a cer- 
tain portion of the creditors had power, by a composition 
with the debtor, to bind the rest. There was, also, at the 
same (inie existing, a provision for relief, similar to the judi- 
cial discharge of the French law, or our insolvent law, a 
cessio bonorum, by which a limited discharge was given 
without the concurrence of creditors, and perhaps intended 
for a different description of persons. This may have occa- 
sioned the apparent contradiction in the authority quoted- 

In the multiplicity of the charges against this bill, another 
was made, which its advocates heard slated with no slight 
alarm, as it seemed at once to bring into the field against 
them an irresistible host of opponents, where they expected 
only to find friends. This bill was said to he deficient not 
merely in gallantry, but even in common justice to what 
was termed " the weaker sex." It was some relief, how- 
ever, to find at lasl, that it was the law of Virginia, and 
not this bill, that was chiefly objected against. The bill 
proposes no change. Every lawyer knows, that what are 
technically called the choses in action of the wife, are ab- 
solutely in the power of the husband. He may reduce 
them into possession ; he may assign them, audit is only 
where, in the ease of a general assignment, the assignee 
is obliged to go into chancery to get possession, that the 
court will compel him, as a condition upon which its aid is 
granted, to make some provision for the wife. All this is 
the effect of the existing laws. The reproach he has cast 
upon the law of Virginia, that it is "monstrous injustice," 
would he offered with more propriety to the Legislature of 
Virginia, for it does not belong to us to deal with the Jaws 



272 

of that state. Of this, however, I am sure, that he has 
misunderstood the Spanish law, when lie supposes it to 
make provision for the "dower" of the wife, in case of the 
husband's bankruptcy. The word is " dowry," not " dower," 
and means not the part of the husband's estate, which (by 
the common law) belongs to the wife after his death, but 
the portion which the wife brings in marriage, and which, 
in the continental nations of Europe, is so far separate, that 
the wife may be a creditor of the husband. The Spanish 
law, in the part referred to, provides, that tin; wile shall 
not prove her dowry in case of a second bankruptcy, and 
instead of. enlarging, diminishes her rights. Whether there 
is " monstrous injustice," as has been asserted, in the law 
of Virginia, which gives to the widow only one third of the 
slaves she brought in marriage, and that third only for life, 
I will not undertake to say. But this is certain, that what 
in those nations, where the civil law prevails, is accom- 
plished by treating the husband and wife as separate per- 
sons, may be edit ted where the common law is in force, by 
means of a dust, (which, by the way, this bill would not 
injure,) and if that expedient is not. more frequently resort- 
ed to, it is owing to manners, and not to laws — The gen- 
tleman from Virginia might, however, have found an apol- 
ogy for the laws of Virginia, and of the other states, or 
rather for their manners. Marriage is there an intimate 
union, founded in affection, and preserved in general with 
mutual faith and kindness. It is contracted in early life, 
while the feelings are warm and pure, and I he simplicity of 
our notions regards it is an absolute union of interests, an 
agreement to share a common lot. The parties start to- 
gether in the morning of life, together they hear the heat 
of the day, and if their lives are spared, they walk arm in 
arm till their equally lengthening shadows reach to their 
descendants, who are entering on the same career. No 
artificial contrivances of separate estates; no provident 
schemes of independence which neither desires ; no such 



27 :\ 

arrangements as arc found exactly where marriage, in 
certain classes, is almost a state of perpetual divorce from 
bed and board. And 1 would myself volunteer to rescue 
Virginia from tin; imputation of falling short of Spain in 
gallantry, by plainly averring, that what (be Spaniards 
have in their laws, the Virginians have in their hearts, 
and leave it to the ladies of Virginia to decide which they 
prefer. 

Great apprehension, too, is expressed by the same gen- 
tleman, least injustice should be done to those who may 
have had dealings with the bankrupt. " If," says he, " a 
debtor of the bankrupt disputes the claim made against 
him, he is liable to a heavy forfeiture of double the value 
on the ground of concealment."' No doubt he thinks so, or 
he would not state it. But what is the fact ? Js there any 
ground for the alarm ? Is there any clause in the bill, I bat 
can, by any possibility, admit of such a construction, as, 
that a man cannot contest a claim he believes to be unjust, 
witbout incurring a penalty? If there be, let it be point- 
ed out, and at once erased from the bill. But there is no 
such tbing. The only provision that can be: supposed to 
have given rise to such an imagination (and that must have 
hcen from a hasty or very prejudiced perusal,) is that 
which is intended to operate upon persons fraudulently 
concealing property and rights of the bankrupt, with a 
view to cheat his creditors. Arc they entitled to any pe- 
culiar regard f . Is it for dealing with just severity towards 
them, that this hill is denounced as tyrannical, rapacious, 
oppressive, and dangerous to the liberties of the people I 
J thought fraud or cheating was every where an oflencc, 
and a cheat — a mean culprit, who all would agree was 
deserving of punishment ; and 1 still believe, that if (bis 
precaution had not been in the bill, the omission would 
have been urged as an argument against it. The want of 
due security against fraud, would be, in truth, a substan- 
tial objection. 

35 



274 

In this multitude of exceptions, it is also made matter of 
very grave accusation, that the law is to be executed by 
irresponsible officers. 1 should like, before we proceed 
further, to know what the gentleman from Virginia means 
by " irresponsible 1 " 1 officers. Are not the commissioners to 
be appointed by the highest executive officer of the govern- 
ment, by the same power that appoints all your officers, 
civil and military, and to whom the power of appointment 
is entrusted by the constitution ? Are they not responsible 
to him, and are they not responsible to us, exactly in the 
same manner as all other civil officers? Deriving their 
authority from the same high source, and accountable to 
the same extent, as the judges of courts, the commissioners 
under the Spanish treaty now in session, the governor and 
judges proposed by a bill on your table to be appointed for 
Florida, in what sense is it that they are to be " irrespon- 
sible ?" Does he mean to be understood, that no officer is 
responsible unless he give security, which seemed to be his 
meaning? Let him then propose it, and at the same time 
propose to require security from other officers who have 
similar functions to perform, such as the governor and jud- 
ges of Florida, and substitute for the responsibility of gene- 
ral good conduct, honour, conscience, and a regard for 
reputation, the meaner obligation of a nominal pecuniary 
liability. I say nominal, because at last it will be found, 
when he has got his bond, that the duties to be performed 
by the commissioners, like those of the high officers I have 
already referred to, are not to be estimated in money, and 
he would be extremely perplexed, if he were to attempt to 
fix the damages to be recovered for the violation, neglect, 
or inadequate performance of duty by judges, commissioners 
or governors, or even by members of congress. 

In the hands of the gentleman from South Carolina, (Mr. 
Mitchell,) this objection took quite a different shape. The 
compensation of the commissioners is so low, he says, that 
the president will be able to get none but pettifogging law- 



275 

yers to fill the office. I will not stop to remark, that this 
difficulty, (if it existed) would be removed by increasing 
the pay. Nor will I detain the house to state, that in the 
United States we have no such class as that of pettifogging 
lawyers. The profession is in general a high and honour- 
able one. There are occasional exceptions, of persons of 
low and sordid conduct and character, but they are marked 
and frowned upon by the profession, as well as by the com- 
munity, and it must be a rare accident that would bring 
one of them into an employment of confidence. Of the 
class, I repeat, we know nothing but from books, which 
have given us an account of their existence elsewhere. 
And I will no more admit such a charge against an hon- 
ourable profession, than I would admit those brought against 
merchants. At the moment, however, that he was giving 
utterance to this injurious apprehension, the practical an- 
swer was at hand. The compensation under this act is 
five dollars a day ; under the act of 1800, as amended in 
1802, it was six dollars a day, which is not difference 
enough to make any change in the character and qualifica- 
tions of the persons to be appointed. Now, at the very 
time when the gentleman from South Carolina was stigma- 
tising by anticipation, the execution of the law, there sat 
beside him, a most respectable member from Virginia, (Mr. 
Tucker,) who was a commissioner under the act of 1800. 
This is a practical answer, which may be extended by 
naming others, whom it would be superfluous to do more 
than name. The late secretary of the treasury, Mr. Dallas, 
a late representative on this floor from Pennsylvania, Mr. 
Hopkinson, a gentleman who has been governor of New 
Jersey, and is now in the senate of the United States, that 
governor of Virginia too who perished in the calamitous fire 
at Richmond, and many others of equal respectability, were 
commissioners under the former law. These facts might 
be sufficient to allay that gentleman's fears. Is it for a 
moment to be supposed, that the president of the United 



27G 

States will descend into the low places of society to find 
incompetent and unworthy men to fill offices of this sort, 
contrary to all former experience, and in opposition to 
every motive of duty, of interest and honour, when he can 
readily supply them with men of high character and stand- 
ing ? It does really seem to me, that nothing but a preju- 
diced view of the matter, a predisposition, if not a prede- 
termination to think ill of the law, could have led to con- 
clusions so hasty and so palpably erroneous as both those 
which I have now had to notice. As to the messenger of 
the commissioners, if he was one of the officers who created 
this alarm, I will only say, make him what you please ; let 
him be (as in fact he formerly was) the marshal, or the 
sheriff, or any body else, and require from him what secu- 
rity you think proper for his good conduct ; all that is easily 
arranged, in less time than is required to talk about it, and 
with less labour too, if we are really desirous to have it 
done. 

Another topic which has given occasion for the exercise 
of much ingenious speculation, and great diversity of view, 
' is the subject of preferences. Before I approach the gene- 
ral question, however, let me put the gentleman from Vir- 
ginia (Mr. A. Smyth) right, as to a specific objection he 
has made; it is, that the United States would be in danger 
of losing their priority or preference in payment, because, 
as I think he stated it, the assignment would vest the pro- 
perty in the assignees before the lien of the United States 
attached. I need not say, where there are so many law- 
yers, that lien and preference in payment are different 
things, and that it is not necessary to give priority, that 
there should be a lien, though a lien may of itself confer a 
preference. The priority of the United States is esta- 
blished by law, and does not rest upon a right of lien, and 
thai priority is express/// saved by the 60th section of the bill, 
which has, I presume, escaped his observation. But the 
same gentleman objects with great earnestness, that this 



277 

bill takes away preferences, puts all creditors upon an 
equal footing, which he thinks contrary to good policy and 
justice, and contrary to the law of Virginia for distributing 
the estates of persons deceased. Another gentleman from 
the same state, takes exactly opposite ground, and con- 
tends that the bill is bad, because it does not effectually 
destroy the power of giving preferences. It certainly is, 
in the estimation of the friends of the bill, one of its chief 
excellencies, that it will, as far as practicable, take from 
the failing debtor, the power of paying one creditor in pre- 
ference to the other, of giving the whole to one, and leav- 
ing nothing for the rest, as his own views of interest or 
feeling may direct ; and that it will distribute equally the 
effects among all his creditors. To say that the law of 
Virginia, or the law of Spain, prefers some classes of credi- 
tors to others, and even to prove that it is fit that the law 
should do so, is nothing to the purpose, for the question 
here is not what the law should provide, but what the 
failing debtor shall be permitted, of his own mere will to do; 
and every argument that does not meet that precise case, 
goes wide of the mark. Has any one pretended to deny, 
that this power in the debtor who is not able to pay all his 
debts, produces the evils and mischiefs which have been 
heretofore stated ? No. It cannot be denied. But the 
Speaker has endeavoured to avoid the effect of what I think 
an incontestible truth, by an argument something of this 
sort, in which he has been supported by another gentleman 
from Virginia : " It is just in any debtor to pay me that for 
which he had received a valuable consideration, and if it 
be just in him to pay, it cannot be unjust in me to receive." 
The answer is, that the proposition, if true, (and there 
may be great doubt of its truth, where the debtor acts from 
a selfish motive, and with a knowledge of his insolvency,) 
does not go far enough, and does not apply to the case in 
hand. It only proves that it is not unjust in the creditor 
to receive, if the law permit him to do so, but to be of any 



278 

avail, it ought to go further, and establish that it would be 
immoral and unjust for the debtor to adopt a different 
course, and distribute the remnant of his property equally 
among all his creditors, or for the law to prescribe that 
course to him, and forbid his giving preferences. If neither 
be unjust, it is an open question for the law giver, to adopt 
that policy which he thinks most just, and most conducive 
to the public interests. The argument, therefore, is alto- 
gether fallacious, and the rule it would furnish has never I 
believe been adopted by any legislature ; but the distribu- 
tion of insolvent estates has every where been the familiar 
subject of legislative direction. And so it ought to be ; for 
in point of fact we know, and without the aid of experi- 
ence we might take it for granted, that the preferences 
given by debtors are not in favour of the meritorious, the 
needy, the helpless, the ignorant, the distant creditor ; those 
are apt to be overlooked and disregarded, and the provision 
is most likely to be made for the importunate, the wealthy, 
the watchful, those who are at hand, and those who are 
able to aid the debtor by future loans of money or of credit. 
The rule of equal distribution has intrinsic merit in it. The 
maxim of a court of chancery is, that "equality is equity," 
and as a general rule no better can be adopted. 

The opponents of the bill, have, in several instances, 
contradicted each other. They have made objections and 
employed arguments of a directly opposite character. 
Most of them have regarded it as injurious to the creditor, 
subversive of his rights, and therefore, immoral and unjust. 
But the gentleman to whom I have so often referred, (Mr. 
A. Smyth,) has found out, that the project is too favourable 
to the creditors, that it is calculated to benefit them too 
much, that it is an energetic remedy, that, to use his own 
language, " it is calculated to fill the pockets of the credi- 
tor." Without attempting to reconcile these inconistencies, 
it might fairly be claimed as some merit in the bill, to have 
so conciliated the conflicting rights ot debtor and creditor, 



279 

that one set of its enemies are driven to urge that it has 
done too much for the former, and the other, that it has 
done too much for the latter. If it had done more than it 
ought for either, at the expense of the other, this would 
have been the ground of objection maintained by all, 
uniformly and consistently. As to the assertion that it will 
" fill the pockets of the creditors," I will only say, that if 
he who made it can establish its correctness, he will be- 
come by far the most powerful advocate the bill has had. 
He will gain over all those who are the exclusive friends of 
the creditors. Its most sanguine friends have never pro- 
mised so much, and they would be deemed extremely 
visionary indeed if they were to hint that the pockets of 
creditors could by any legal contrivance, any legislative 
alchemy, be filled from the wrecks of insolvent estates. 
It is at least, a very singular objection. 

There are some objections which I hardly know how to 
dispose of or treat. It would be fatiguing to me, and more 
so to the committee, if I were to notice all the little matters, 
some of them extremely minute and not worthy of the 
time bestowed upon them, which have been pressed into the 
service of our opponents, and arrayed against the bill. 
We are told, for example, that there is to be no duty paid 
upon sales of bankrupt estates by auction, and this is no 
less than an invasion of state rights. One would be led to 
suppose, from the seriousness with which it was brought 
forward, that it was a new as well as a most dangerous and 
alarming invasion. And yet it so happens, that it is not 
new, and I think it cannot be dangerous, for it was long 
ago made in a most peaceful manner, and it is still going on 
without complaint or resistance. Does not the Marshal 
every where sell under process of the federal courts with- 
out paying auction duties ? If it had been proposed to 
make bankrupt estates pay auction duties, in order that 
creditors' pockets might not be " filled" too full ; to render 
this new discovered mine of wealth a source of revenue ; 



280 

to lax all who ask the aid of this newly invented and 
magical power, such a proposition would have been intelli- 
gible. 

Another most formidable objection, of danger to the rights 
and liberties of the citizen, seriously insisted upon, was 
this : — If a commissioner, assignee, or other person acting 
under a commission, should be sued for any act done in the 
course of his duty, and the suit should be decided in his fa- 
vour, that is, the plaintiff should fail in his suit, what then 
is to happen 1 Why doubtless we are prepared to expect 
some dreadful catastrophe, of which the plaintiff, who has 
only brought a false and vexatious suit, is to be the un- 
happy victim — fine and imprisonment at the very least, if 
not death or torture. And what is it ? He is to pay 
double costs. This is a small matter to differ about, 
and rather than gentlemen should be seriously disturbed, I 
should be inclined to make it only single costs. If time and 
the patience of the house would permit, it might he shown, 
however, that even this dangerous provision is not wholly 
indefensible. It has been in the collection law of 1799, for 
more than twenty years, without doing any mischief. It 
was introduced into the collection law of 1815, and there 
remains uncensured ; and the embargo act of 1809, made a 
much larger stride towards this imaginary tyranny, for 
that actually gave treble costs ! But, the truth is, that this 
is the most moderate penalty that can be devised, for the 
security of persons acting under public authority against 
unjust, and unfounded, and vexatious suits for what they 
do in the discharge of their duty, and as such, is frequently, 
nay, habitually, resorted to. 

Of still less force, is the imputed invasion of state rights, 
with regard to gaolers, by making them liable for escapes. 
We all of us know that the United States government have 
no right to use the gaols of the states, nor of course to 
employ their gaolers without their consent. Where the 
use of the gaols is permitted by the states, the gaolers 



231 

thereby become the gaolers of the United States, and are, 
and ought to be, universal y liable for escapes. H these 
officers were, or could be, subjected to such responsibility 
without the consent of the states, there might be ground 
for complaint, and to those who are excessively afraid of 
encroachments by the general government, there might be 
ground also for apprehension. But it is always under a 
law of a state (which they may pass or not at their pleas- 
ure,) that its prisons are used by the United States, and 
then the gaolers are to be considered as only performing 
their ordinary duty, with their ordinary compensation, and 
under their ordinary accountability. It would be rather 
below the dignity of grave legislation, to enact that the 
gaoler should be at liberty to let his prisoner go free. 
Some person who did not perplex himself with deep specu- 
lations, might confound us by asking what gaols were for. 
None of the objections to the bill, however, have struck 
me with more surprise than those which seemed to spring 
from a sudden, newly awakened, but unfortunately, not 
enduring sympathy for the unfortunate bankrupt. They 
gave me, I will confess, a momentary pleasure, for the source 
from which they seemed to flow, was one from which we 
much relied for aid. But the grateful feeling was instantly 
checked. It was impossible to avoid perceiving, that it 
was the spirit of opposition to the bill, and that alone, 
which was at work, even when the better genius of hu- 
manity was invoked to furnish an argument. What is it 
we hear 1 Why the gentleman from Virginia, (Mr. A. 
Smyth,) tells us, the certificate will not be an effectual 
security to the bankrupt, for it may be questioned upon the 
ground of fraud and concealment, and set aside if fraud 
and concealment are 'proved. With all our exertions we 
have not been able to engage his sympathy on behalf of the 
honest but unfortunate debtor, and here it bursts forth at 
once in favour of the fraudulent bankrupt. Let me ask 
one question. What would have been thought of a bill 

36 



without such a provision? Would \i not have becfi stig- 
matised, nnd inslly stigmatised, as an open and inviting 
refuge for fraud f . Perhaps il is mean! only, that the 
creditors may contrive to have the certificate cancelled 
and annulled without a jusi cause, by false evidence or 
from misunderstanding the case. I\<> man can say that 
this may no! happen; it is certainly within the range <»t' 
possibility. But il il should, and I believe il never has, 
ought we for this remote, possible contingency, h> withhold 
all legislation I If some should !><• unjustly deprived of the 
hen. lil oi a certificate, others will obtain it, and bo far w< 
shall do good. The same motive should induce us l<> repeal 
all our penal laws, for d is not only true that d may happen, 
but il actually has happened, (as that gentleman's legal 
reading enables him full well to know,) that the penalties 
of the law, even the punishment of an in famous death, have 
fallen upon innocent men. 

In like manner il is objected, that Dm- bill requires the 
concurrence of two thirds, in number and value, of the ere* 
ditors to give a discharge, when according to the views of 
some, the commissioners .done ought to have the power, 
whether t li<- creditors consent or not. This would be to 
disregard what the experience of every other nation recom 
mends, for they all agree in requiring the consent of at Ira si 
.1 majority of the creditors, before the bankrupt can be did 
charged. Still, though I incline slrongbj at present to the 
section as it stands, if the gentleman who has given us I his 
view, (Mr. A.Smyth) will propose an amendment to (he 
effect he has mentioned, meaning thereby ko promote the 
passage of the law, 1 will do my best to go along with him, 
and do not doubt that I shall be able to overcome my dilli- 
culties, if he can get rid of his. I must, however, in pass- 
ing, inform him, that he is in an error when he says, the 
Lord Chancellor in England has the power of compelling 
the creditors to sign the certificate. Il is not so. His own 
authority, if he will consult il again, will satisfy him on 



tie:; 

this point. And, without even that trouble, he may per- 
ceive, that there would be no sense in having the signature 
of the creditors at all, if they could be compelled to sign. 

After so long detaining the House, it would he inexcusa- 
ble to follow all these statements in detail, and yet, if they 
were worth making, they are perhaps worth refuting. 
When one who has been at great pains to inform himself, 
and to give information to others, has fallen into so many 
mistakes, it is quite impos: ible to say, that he may not have 
led others into them: they are unimportant, individually, 
but collectively, they make a startling host, lie has told 
us, that the old law was in operation but eighteen months, 
and cases remain undetermined after eighteen years. In 
pursuing the antithesis, he has lost sight of the fact. It 
was in operation more than twice the time, that is to say, 
for three years and r'rjlii months. Home hundreds of cases 
were decided, as appears from official documents on the 
table, to which I mean hereafter to refer; and it does not 
appear that any remain undecided. Certainly, I admit it 
to be highly probable, and believe it to be the fact, that 
some of tin; numerous concerns of these numerous estates 
have not been closed, and some of them never will be 
closed. Is that the fault of the law? Just as much as it 
is the fault of the people and the government, that claims 
arising out of the war of the revolution are still, after forty 
years, unsettled and unsatisfied, and every day presented 
to us for liquidation, or that some will inevitably remain 
forever unrequited. It is owing to the nature of the con- 
cerns themselves, and not to any defect in the administra- 
tion of the law. 

But all the controversies arising under the bill will go 
into the Federal courts for decision, and here is a formida- 
ble fact for all who are opposed to the exercise of the Fede- 
ral judicial power. — There is an obvious answer. The ex- 
tent to which this may be carried, depends upon the plea- 
sure of Congress, who may make the law in this respect 



284 

exactly what they please. The present is not a fit time to 
discuss the question, but there will be full opportunity here- 
after, and whatever the House may decide, will of course 
be acquiesced in by the friends of the bill. Unless those 
who make the objection, will show that it exists, otherwise 
than by general denunciation, and apply their efforts dis- 
tinctly and specifically to remove it, they ought not to make 
a clamour, calculated only to awaken unreasonable preju- 
dices upon a subject too little understood already. — Well, 
but have we not even a weightier sin to answer for? The 
gentleman from Virginia (Mr. Smyth) who has pursued this 
unfortunate bill with unsparing and unrelenting severity, 
has stated that the law, if passed, would create an enor- 
mous body of commissioners, an army indeed, adding, in a 
parenthesis, jproliabhj not less than three thousand! And 
the representation has gone forth among the people. They 
will be forced to conclude, that we are going to bring upon 
them something like an Egyptian plague, a flight of locusts 
" to corne up upon the land, and eat every herb of the 
land," and reduce them to famine — or perhaps they will 
imagine, that they are to have domiciliary visits, or to 
be waited upon by a host of excise-men, with inkhorns at 
their button-holes, and authority to search and seize in their 
pockets. Probably, not less than three thousand commis- 
sioners ! I should like to know how this terrific calculation 
was made, for I am sure that such a number could not find 
employment, and if they should become dangerous, it must 
be from mere idleness. Let us see. Under the former 
law, there were not more than five commissioners in any 
one state, in some there were fewer, and in some there 
were none. It is not necessary to be very particular when 
we talk about thousands — we will allow an average of five 
for a state, which is more than twice as many as will be 
wanted. That will give us for the union, one hundred and 
twenty. Let us have one hundred commissioners, to exe- 
cute the law, and he is welcome to the balance of the three 



285 

thousand, to dispose of as he thinks fit. If that will not 
satisfy him, there is a very simple expedient that will make 
assurance sure. Let him provide in the bill that the whole 
number shall not exceed a certain limit; let the President 
be expressly forbidden to raise this host. 

I will not dwell upon what has been said of the penalties 
denounced by this act, against persons convicted of perjury 
or fraud, nor attempt to settle precisely what term of im- 
prisonment, or what pecuniary fine ought, according to the 
most scrupulous and exact calculation, to be inflicted upon 
conviction. In taking the maximum, however, of ten years 
imprisonment, as the punishment to which " four several 
offences which a bankrupt may commit," are subjected, 
and thence deducing its oppressive character, the gentleman 
from Virginia (Mr. A. Smyth) has not done justice to the 
bill, for it is to be " not less than twelve months nor ex- 
ceeding ten years," giving a discretion, within those limits, 
to the court before whom the offender may be tried. In 
the contrast which he presented between the general law 
for the punishment of perjury, which he says, inflicts only 
three years imprisonment, and the present bill, his state- 
ment was also short, for it wholly escaped his notice that 
the pillory was in the former, and not in the latter. I con- 
fess myself unable to estimate how many dollars of fine, or 
how many days of imprisonment, may be an equivalent for 
an hour in the pillory. Let the convicted culprits judge 
of that, but let the community be spared the pain and dis- 
tress of being obliged to witness a public exposure, as in- 
consistent with sound policy, as it is with all just feeling. 
This bill has not to answer for perpetuating a mode of 
punishment, which most of the states have abolished ; nor 
has it to answer for copying the bloody penalties which are 
the opprobrium of the bankrupt law of England, and one 
great cause of its failure. The penalties are mild, and con- 
formable to the enlightened spirit and humane disposition 
which pervade our country. 



286 

Is it in conformity with the same spirit, some one will 
now be ready to ask, that we allow doors to be broken, in 
pursuit of a fraudulent bankrupt or his property ? This 
power has been severely censured by the gentleman from 
Virginia, (Mr Smyth,) and a gentleman from South Caro- 
lina, (Mr. Mitchell,) whose views were in general much 
larger than • this objection implies. They represent it as 
unreasonable, as cruel, in derogation of common right, con- 
trary to our established notions, and even unconstitutional, 
not to permit the fancied privilege of an outer door to stand 
between a fraudulent bankrupt who is seeking to conceal 
himself or his property, and the just claims of his creditors : 
And the latter gentleman has even gone so far as to assert, 
that the people of South Carolina would not submit to its 
exercise ; that it could not be executed ; that they would 
resist at every hazard. He has not done justice to the 
good people of South Carolina, who I believe, are as little 
disposed as any part of the United States, to resist the 
execution of laws rightfully enacted. And for whom is it 
thus assumed that they would array themselves in open 
hostility against the laws ? For whose rights is it, they are 
supposed to feel such tender regard, as to assert and main- 
tain them at the extreme risk even of shedding blood 'I It 
is for that man, who has been described as a degraded 
being, one without a home, who belongs to every country 
and no country, who has no stake or interest in society. 
That is not all, it is to be for one, who to the imputed and 
unmerited degradation thus ascribed to him, has added the 
real degradation of fraud — the fraudulent bankrupt is to 
summon insurrection to his aid, to put down the execution 
of a just law — It is all a mistake. The state of Virginia 
and the state of South Carolina, have adopted the English 
Common Law, with some modifications. That law does 
give us the phrase, " that a man's house is his castle," 
indicating by the terms in which it is expressed its feudal 
origin, and the proud spirit of the feudal lord, who, proba- 



287 

bly, relied upon something stronger than the law to pre- 
serve his " castle" from violation. But as now understood, 
it is nothing more than this, that the outer door of the 
house shall not be broken to serve civil process upon the 
owner or his goods. Where the outer door is open, the 
inner doors are no security ; where the officer has once 
obtained entrance only for his arm, he may go on even 
with force — It must be process, too, which is merely civil ; 
if it be but tinctured with criminal character, doors, outer 
or inner, are not in the way — And what outer door, is it, 
that has even this privilege ? Of the house of the person 
against whom the process is directed. One man's house is 
not permitted to protect the person or the property of ano- 
ther. So very limited is the common law privilege, which 
is the ground work of this pompous phrase, that a man's 
house is his castle, and which has been made the theme of 
so much declamation. It is not at all invaded, and if it 
•were, cannot we alter the common law? Whenever bank- 
rupt laws or attachment laws have been made in the Uni- 
ted States, it has been entirely disregarded, they have con- 
tained and do now contain the very provision, so much 
inveighed against in this bill. The common law docs not 
permit process to be served on Sunday, and yet the attach- 
ment law of Virginia, directs, that attachments shall be 
issued and served on Sunday, which is obnoxious to exactly 
the same remarks — Now, what is the provision of this bill? 
The most guarded, at the same time that it is the most in- 
dispensable that can be conceived. Upon probable cause, 
supported by oath or affirmation, doors may be broken in 
the day time, to reach the person or property of a fraudu- 
lent bankrupt, secreted within them. Remember, the pro- 
cess is not civil, but criminal. The common law privilege, 
does not even in theory extend to it. Gentlemen who 
make these objections, and especially those who talk of re- 
sistance, must permit me to tell them, that they do not know 
the laws under which they live, at least they have not 



288 

considered their operation in relation to the subject in hand. 
The people of South Carolina, and the people of Virginia, 
too, not only submitted without resistance to exactly the 
same clause in the former bankrupt law, without a mur- 
mur, but they are now, and for years have been living 
peaceably, and in the undisturbed enjoyment, as they have 
believed, of all their rights, under laws of the United States, 
giving precisely the same powers. The collection law of 
1799, and that of 1815, both authorise collectors to break 
dwelling houses — Where is this sleeping lion of which gen- 
tlemen profess to be so much afraid. He must have slept 
profoundly, or been very good natured, for they did not 
even know of his existence — It is the cage they dislike, and 
not the lion. The truth is, that such powers are cautiona- 
ry or preventive, rather than active. The knowledge of 
their existence, saves the necessity of exercising them. 
The cases are rare and flagrant in which their exertion is 
required, and then they arc indispensible ; their omission 
would be absolutely unjustifiable, and would betray gross 
ignorance, or unreasonable concession to speculative fears. 
One single instance of successful security obtained for the 
person or property of a fraudulent bankrupt by means of 
this fancied privilege of the dwelling house, would give oc- 
casion to more well founded complaint, than could arise 
from the exercise of the power for a century. 

Of a like nature is the censure upon the bill for giving 
the authority to issue process, which will follow the person 
from one part of the United States to another, as, for in- 
stance, to seize him at New Orleans, upon a bankruptcy 
committed at Boston, and bring him back. And why not ? 
An extreme case ingeniously put, may occasion a momen- 
tary pause. But is this any thing new 1 Do not gentlemen 
know, that under a law of 1793, subpoenas from the Fede- 
ral Courts will run from one slate to another, and that of 
course attachments to compel obedience to them, or rather 
to punish disobedience, are equally unlimited in their ope- 



289 

ration. And whom is it that this process, now complained 
of, is to pursue and seize ? The fraudulent bankrupt, who 
is running away to cheat his creditors, and who is entitled 
to no compassion. 

I know, sir, that I have occupied much of the time of the 
house in answering these objections, perhaps too much. I 
will not disguise that I feel relieved in having had the 
opportunity of showing, that some of the most formidable 
amongst them, urged as if in fact they existed against this 
bill, were in truth applicable only to the law of England; 
and that others, however strongly insisted upon, had no 
foundation whatever, owing their support to nothing but the 
zeal and ingenuity of those who brought them forward, and 
requiring only a little examination to expose their fallacy. 
It is unfortunate, that the bill, from its necessary length 
and variety of detail, has little chance of being carefully 
studied and understood, and is on that account peculiarly 
exposed to the danger of misrepresentation. The friends 
of the measure, could not but be concerned, that the state- 
ments which you have heard, should go forth to the world 
without contradiction ; and that those who framed the bill, 
should be subjected to the mortification of being supposed 
to have constructed it in so careless or unworkmanlike a 
style, as to defeat their own object, and disappoint the 
anxious wishes of those who have asked our interposition. 
This would, indeed, be a severe censure, but one they know 
they do not merit — -for these objections, however plausibly 
stated, have all of them come from the declared enemies of 
a bankrupt law under any modification whatever, who would 
just as readily vote for the -present bill, as for any other that 
could be devised to accomplish the same end. If the bill 
should become a law, it will vindicate itself. Its first hu- 
mane and effective operation will signally refute the argu- 
ments and objections brought against it here and elsewhere. 
But if it should be rejected, and not permitted to speak for 
itself, it is much to be feared that its true character would 

37 



290 

not be generally understood, nor, consequently, the motives 
of those who have given it their support. The house will 
therefore pardon me for having so long detained them upon 
this part of the case. 

Before I proceed to the more immediate examination of 
the constitutional question which has been raised, in order 
that the discussion of it may be free from the embarrass- 
ment of any extrinsic considerations whatever, the com- 
mittee will permit me to say something of retrospective 
laws, a topic which has been much insisted upon by the 
opponents of the bill, and especially by the speaker, (Mr. 
Barbour,) but I think entirely misunderstood. 1 fully agree 
with him, and with the learned and eminent judge whom 
he quoted (Chancellor Kent) that the principles of sound 
legislation are opposed to retrospective laws, as essentially 
unjust, and inconsistent with all our notions of good govern- 
ment. But what are retrospective laws? Here it is that 
our opponents have erred, by assuming what has not been 
proved, and what I venture to affirm cannot be proved, 
that such a bill as that before you is justly obnoxious to the 
censure of being retrospective, because it suspends, or if 
you please, under certain circumstances, takes away the 
remedy for antecedent debts discharging the future effects, 
as well as the person. A retrospective law, is a law that 
impairs or affects the vested rights of individuals. Every, 
man has a vested right in his property; a law would be 
retrospective and unjust, that should take the property of 
A, or any part or portion of it, and give it to B. A man 
has a vested right in his contracts, interpreted according to 
the laws in being at the time and place where they were 
made; and so far the argument is correct, that contracts 
are property, or to speak with greater precision, are upon 
the same footing in point of inviolable security. A law that 
should vary existing contracts, as to their interpretation or 
meaning and true effect, would be retrospective and grossly 
unjust — It is also a great political truth, that every citizen 



291 

of a well constituted community, has a general right to (he 
benefit of such remedies, to enforce the performance of con- 
tracts, as a just attention to the great interests of society 
will permit, and the interests and rights of others do not 
forbid. This is the equivalent he receives for the surren- 
der of his own power, that he shall have the aid of the 
power of society, to the extent and in the manner which 
the legislative authority shall deem fit and proper. But 
has a citizen, of this or any other country, a vested right in 
any particular remedy, so that it can never, as to him, be 
either taken away or altered 1 If the creditor has this 
right, so has the debtor ; and then the absurd consequence 
would follow, that the remedies provided by law, and exist- 
ing at the time the contract was entered into, could never 
as to the parties to that contract, be either enlarged or 
diminished. If any part of the property of the debtor was, 
by law, exempted from liability, as for instance his land, it 
could never be subjected to execution. If his person was 
not by law subject to imprisonment, it could not be made 
so. On the other side, it would follow that nothing could 
be withdrawn from execution. You could not, under the 
influence of any motive, however urgent, exempt the bed 
upon which a man's family repose, the cow which gives 
nourishment to his children, the tools of a mechanic which 
enable him to provide for himself and his family, without 
the aid of public relief. To such extravagant lengths does 
this doctrine lead ! It is in the face of every day's experi- 
ence. Legislation is constantly employed in modifying the 
remedies, sometimes enlarging and sometimes diminishing, 
often giving the creditor more power over his debtor, seldom 
doing any thing for the latter. 

The remedy is no part of the contract. The remedy 
depends both upon time and place, while the interpreta- 
tion of the contract, and its legal validity, are uniform and 
permanent, wherever and at whatever time it may come 
in question. When one man gives another a promissory 



292 

note, is it any part of the contract, that he shall have the 
power to put the debtor in gaol if the note be unpaid, or 
shall have an immediate suit, or an immediate judgment? 
This depends upon the will of the legislative authority at 
the time and place, where he may endeavour to enforce 
the performance. But the validity of the contract, its 
interpretation and meaning, are governed conclusively and 
perpetually, among all civilized communities, by the law of 
the time and place where the contract was entered into. 

If a contract be made in the state of New York, where 
the interest of money is seven per cent, it is a part of the 
contract to pay seven per cent, interest — and whether it 
be put in suit in New York or in Pennsylvania, that will be 
its construction. If the interest of money at the time of 
entering into the contract were six per cent., no subsequent 
reduction would affect or alter it. So, if it be to pay money 
at a certain time, it will no where be considered as pay- 
able immediately ; and if it be to pay at once, no legisla- 
tive power would make it payable at a distant day. Thus, 
the contract is every where and at all times the same. 

But the remedy depends upon the law of the forum, 
where it is put in suit, at the time when it is put in suit. So 
entirely is this the case, that even the statute of limitations of 
the place where the contract is sought to be enforced, is the 
the one which is to be applied to the contract, and not the 
limitation established by the law of the place where made. 
And as it is competent to the legislative power, from time 
to time, according to the exigency of circumstances, to vary 
the remedies which individuals shall have against each 
other, or to define the manner in which they shall be per- 
mitted to employ the power of society, to enforce their 
private rights — so is it competent, and even indispensibly 
necessary, that the legislature of a well constituted com- 
munity should have authority to declare that under certain 
circumstances, where the public good, and a due regard for 
the interests of all require it, the remedy shall entirely 



293 

cease, and the creditor be no longer at liberty to use the 
power of society to enforce his claims — to provide that the 
effects shall be discharged, as well as the person. The his- 
tory of the world had proved its necessity — the insurrec- 
tions and secessions at Rome, had shown, that an unmiti- 
gated execution of severe laws between debtor and creditor, 
was a mode of oppression, as unjust and dangerous as any 
other whatever. It had produced convulsions, and might 
do so again. The experience of the world, including the 
states which compose this union, had established the law- 
fulness of its exercise. And no plan of government would 
be complete, or safe, or just, without it. 

Not that the legislative authority can release a man from 
the moral or conscientious obligation to fulfil his contract — 
this transcends all human power. The bill on the table 
does not attempt to do so — it does no more than declare 
when in the case of an insolvent debtor, who by a summa- 
ry remedy has been compelled to surrender all his prop- 
erty for payment of his debts, a certain proportion of his 
creditors concurring, he shall no longer be subject to the 
process of the law, but be relieved, effectually and finally 
from the oppressive weight of the power of society wielded 
by the creditor. His duty in conscience remains, as it 
does in many cases where from reason of policy, contracts 
are prohibited and declared void. In the instance of usury 
the laws of England make the contracts void, and courts of 
law will not enforce them. Yet, if the debtor is obliged to 
go into a court of equity for relief, he can only obtain it 
upon the terms of fulfilling his conscientious obligation, that 
is, of paying the principal and legal interest. 

A retrospective law, which is obnoxious to the objection, 
is a law that operates upon the vested right in the contract 
— a law that alters the remedy, is in no sense a retrospec- 
tive law ; it operates upon no existing right, but is the 
exercise of a power which belongs to society for the com- 
mon good, and subject to which all contracts and dealings 



294 

take place — the power, to be used with sound discretion, 
of providing the remedies of individuals against each other. 
Any other exposition of it would be impossible. 

It might with equal truth, and with as much force, be 
contended, that imprisonment for debt could not be abol- 
ished as to antecedent contracts. Imprisonment is a mode 
of compelling payment, and sometimes a very important 
one. A man may acquire property after his discharge 
under the insolvent law, and hold it in such a way, that it 
cannot be reached by process of execution. To relieve 
him from liability to imprisonment does certainly in such a 
case impair the means of enforcing the payment of his debt. 
Yet who ever heard that such a law could be objected to 
as retrospective 1 So if the policy of society required, that 
a portion of the property of a debtor should be exempted 
from execution, as some little household furniture, or his 
tools of trade — There would be no end to the embarrass- 
ment and gross injustice of such a doctrine. It would be a 
sort of formal and pharisaical morality, without substance, 
and without any real respect for the duties and rights of 
humanity, or the peace and safety of the community. 

The truth unquestionably is, that it is impossible to con- 
struct a bankrupt or an insolvent law, that shall not ope- 
rate upon antecedent debts, as has already been shown. 
The power to make a bankrupt law, must therefore 
necessarily imply the power to give it- such effect — And if 
it could be so constructed, there is no good reason why it 
should be ; for as to the relief it is to afford, it can no 
where be better applied than to those who actually stand 
in need of it at the present moment. Accordingly the 
Supreme Court of the United States, in their examination 
of the powers of the states, have made no such distinction, 
as that which has been here contended for. 

The question, therefore, simply is, whether the constitu- 
tion of the United States gives us the power to make a 
bankrupt law, which will discharge the effects as well as 



295 

the person of the debtor from liability. If it does, there is 
no pretence for limiting it to mere prospective operation ; 
for all rights of individuals are as much subject to this great 
fundamental law, and the provisions it contains, as they are 
to any particular law that may be passed in pursuance of 
those powers; as much subject to it, as if it had contained 
a bankrupt law at length. 

Does the constitution permit us to pass such a law? At 
a very early stage of the discussion, I was interrupted when 
addressing to the house, some general views in support of 
the bill, with a request to answer this supposed constitu- 
tional objection before it had been distinctly made. That 
was not the tit time ; if an answer by anticipation had been 
then attempted, it would have been without the means of 
knowing what the precise nature of this new objection was, 
for I confess that I should not have been able to understand 
it as it has since been stated. There might have been 
some danger, too, of weakening the ample refutation it has 
since received. It has been triumphantly overthrown by 
the advocates of the bill; they have had the aid, and con- 
currence too, of some of its opponents. One gentleman 
from South Carolina, (Mr. Lowndes,) met it with a most 
satisfactory argument, proving conclusively that the prin- 
ciple of construction upon which it is founded, is vastly more 
dangerous than the bill can possibly be — another (Mr. 
Mitchell) commenced his speech by expressly repudiating 
it — others have passed it by without notice ; and it is 
doubtful whether at this moment, it is entertained by any 
member of the house, but the three gentlemen from 
Virginia. 

Even these gentlemen do not agree among themselves. 
There arc more than shades of difference between them. 
I understood one of them (Mr. Archer) to argue, that even 
if the constitution gave the power expressly (as it assuredly 
does) it would nevertheless be immoral to discharge the 
bankrupt from liability, and therefore immoral to exercise 



296 

the power. It would be void, for that is the legitimate con- 
clusion of the argument. Yet he admitted that a discharge 
for a time, with a power in the judge to declare the bank- 
rupt liable, when he should acquire more property than 
was necessary to maintain his family, might be tit and 
proper. Something like that is the law of Hamburg. It 
seems to me to concede the whole ground. 

Another of these gentlemen (Mr. Barbour) seemed to 
argue that such an act of legislation transcended the right- 
ful power of society — was immoral and unjust. Once a 
debt, always a debt, is the maxim ; and properly under- 
stood it is undoubtedly true, but in the sense in which it is 
here employed, it is as undoubtedly without foundation. 

I must here protest against mounting higher than the 
constitution, to discuss speculative doctrines in morals, in 
order to get rid of the plain provisions of that instrument, 
so clearly expressed as to seem to render doubt impossible. 
All beyond, must be opinion — Whose opinion, what stand- 
ard shall we adopt, if we once abandon the great constitu- 
tional guide, and set up theoretical reasonings to confound 
its obvious practical precepts ? What writer shall we re- 
sort to for instruction ? Sir, we are not here to pursue 
abstractions, to follow out politico-moral discussions, to 
debate about metaphysical entities or non-enlitics, with 
scholastic subtlety — to chase the horizon, which we can 
never reach ; or to ascend above the walks and business of 
men into the regions of airy speculation. Our duty, under 
the constitution, is with man and his nature, gross and 
chequered as they arc; a being (like ourselves) with 
senses, affections, passions and appetites — subject to error, 
born with infirmities, scarcely master of himself, and not at 
all the master of events — liable to misfortunes, which pru- 
dence can neither guard against nor prevent — who at the 
moment when he seems to be putting down his foot on firm 
ground, may be sinking into a quicksand, or coming within 
the circle of a whirlpool from which he cannot extricate 



297 

himself. We must quit the regions of speculation, and 
etherial beings, and descend in our legislation to the hum- 
ble ground of common sense, applied to creatures of earthly- 
mould, for with such at last we shall find we have to deal. 

When men are brought together in society, it is not only 
lawful, but it is deemed useful and honourable that they 
should engage actively and zealously in the pursuit of those 
things which are the ordinary objects of desire — wealth, 
fame, distinction of every sort, fairly acquired. These 
feelings are quickened by continual excitement. The ob- 
jects of desire are brought nearer, they are enhanced in 
value by the very protection afforded to them, the motives 
for pursuing them are multiplied, and, at the same time, 
rendered more powerful — and while the excitements are 
thus increased, the race more eager, the competitors more 
numerous, the stimulus more continual and powerful. — 
What is it, according to this new theory of morals, that 
society, instituted for the happiness of all, undertakes to 
do 1 To lend its whole power to oppress the unfortunate ; 
to add its whole force to the overpowering weight of 
calamity ; to put its foot, as it were, upon the neck of those 
who have fallen in the race, and keep them for ever in the 
dust. Yes ; such things have happened in the history of 
the world. The body of the debtor has been given to the 
creditor; the debtor and his family have been condemned 
to slavery ; the debtor to interminable imprisonment. The 
common law had it for a maxim, " that he who cannot pay 
in his purse, must pay in his person." 

But these are the stories of dark and barbarous ages ; 
the light of civilization has chased them away, and it is 
now the familiar judgment of mankind, that this great 
moral achievement is not only the fruit of civilization, but 
marks decisively, and with unerring truth, the stage at 
which any nation may be considered to have arrived in 
her progress. 

And what says the history of mankind ? Is there any 
38 



298 

civilized nation, or was there at the adoption of the consti- 
tution, any civilized nation, any society of Christians — for 
Christianity has every where been attended by civilization 
— among whom the power did not exist, and upon fit occa- 
sions was not exercised, of regulating the relation of debtor 
and creditor, and fixing the terms upon which the aid of 
the whole strength of society shall be afforded to the latter, 
and the point at which it shall be withheld 1 Name the 
nation in which a doubt ever existed. Does any writer on 
public law, or any writer on ethics, however rigid, insist 
upon such a doctrine ? The right of eminent domain, as 
some authors term it, or the right of transcendental propriety, 
as it is called by Puffendorf, which has been alluded to in 
the debate, has no relation to the matter in hand. That 
is an inherent right of society, however constituted, a 
conservative power essential to its existence, and not de- 
rived from grant. It is a power of self preservation, and 
means nothing more than that the community has a right, 
in certain exigencies, to take or to sacrifice the property of 
individuals, for the safety and advantage of the whole, 
which is attended with the correspondent obligation to make 
compensation out of the common stock, if that can be done. 
But what has this to do with the question, whether we are 
bound to permit one of our citizens forever to follow ano- 
ther, who has been unfortunate and surrendered all his 
property, with the process of the law, exercising over him 
a violent dominion of terror, driving him to idleness and 
despair, or obliging him to take shelter in fraud, without 
even the probability of obtaining any thing by it but the 
gratification of evil passions ? 

There is, indeed, one view which arises out of this sugges- 
tion, where a close and decisive analogy will be found. It is 
as much the duty of government to protect the property of 
its citizens against foreign force, as it is to give them reme- 
dies against each other. It is even a more interesting duty 
to the citizen. Does it follow, or has it ever been conceived, 



299 

that government is in every instance hound to fulfil this 
duty by an appeal to arms where justice is withheld — to 
involve the nation in all the calamities of war, wherever 
the rights of property of an individual have been invaded? 
It is a matter of high discretion, and so is the regulation of 
the domestic remedy. 

But, 1 repeat, is there any nation that has doubted, or 
any writer who has denied the morality of the power 1 
The expediency of its exercise, under given circumstances, 
is quite a different question, iou have already had the 
example of a large portion of the civilized world, England, 
Scotland, Ireland, Holland, France, Spain : and let me add 
Hamburg. You have had the examples of some of the 
states of this union, Rhode Island, New York, Pennsylvania, 
Maryland — one of them, too, (Pennsylvania) having a good 
bankrupt law in force at the very place where the conven- 
tion was sitting. 

This may all be a mistake ; a new discovery may have 
been made. And what is it 1 Why it is, in substance, 
that to make such a law transcends the power of society — 
and why ? Because it is against good morals and contrary 
to the dictates of justice. Such is the sum of the argument, 
fairly stated. It has an imposing appearance, but it will 
be found to be an argument in a circle, and the error of 
those who wield it with so much apparent triumph to con- 
sist, in not going far enough back for their premises — in 
assuming that, which is not and cannot be established. 

What is the meaning of the position, upon which this 
whole assumption of immorality stands ? Is it that no politi- 
cal community can rightfully possess the power ? It must 
be, or it is nothing. For if it mean only that it is unlawful 
and immoral to exercise the power, because it has not been 
conferred, then it is a mere truism, of exactly the same 
import, as if one should tell us that we could not rightfully 
exercise a power which the constitution denies to us. 

The position then must be, that no political community 



300 

can possess the power, which may be confidently pro- 
nounced to be untenable, and which every reflecting man 
who will be at the trouble to examine it, will concur in 
pronouncing to be so. The very reverse is true — no well 
constituted political community can be without it, and it 
would be a disgrace to the constitution, if it did not contain 
a provision, so just, so humane, so indispensable, that its 
omission would argue a blind and obstinate disregard of 
all the most obvious lessons of experience. 

We are led here into an examination of rather an 
abstract kind, and almost painful, as it always is to enter 
into researches which have been long since practically 
made, and resulted in the establishment of certain familiar 
truths open to every one, and commonly received as first 
principles. 

Our government is founded upon contract, not implied, 
but express, realizing what was once thought to be an idle 
vision, a mere creature of the imagination. All power is 
in the people, and they have parted with as much of it by 
the constitution as they thought proper to give, retaining 
the rest, and retaining too the power to recall or alter what 
they have granted. The power of a government, thus 
constituted, embraces all which those who formed it could 
rightfully give, and have chosen to confer, or, if you please, 
to relinquish. There are rights which are in the strict- 
est sense inalienable, and which individuals cannot part 
with ; such is the right of self-preservation. The declara- 
tion of Independance enumerates them, " life, liberty, and 
the pursuit of happiness." I am not going to enter into 
the contested question, whence society derives the right to 
take away life for crime. In return for what is given up, 
individuals obtain a most substantial benefit ; the protect- 
ing power of the whole is extended to them, to secure life, 
liberty, and the pursuit of happiness, as well as property. 
The most prosperous have the largest share of this protec- 
tion, for they have most to be secured. Now, I will ask 



301 

whether any one can seriously maintain for an instant, that 
individuals have no right to give up to society, the whole 
regulation and control of the relation of debtor and credi- 
tor ? Cannot a man release his own debt; and if he may, 
cannot he permit it to be done by others ? Is there any 
thing immoral or unjust in doing so ? Is the right of proper- 
ty an inalienable right? I will not ask whether it does not 
owe its very existence to society ? Surely all the power 
over it might be thus transferred, every modification of it, 
even the fruits of a man's own acquisition. There arc 
societies in which property is in common. Is it immoral or 
unjust ? It may be impolitic or unwise. 

Suppose, then, it should be agreed, in the social compact, 
that (he creditor shall be aided to enforce the performance 
of contracts, but that the governing authority shall decide 
when and to what extent. Is this immoral or unjust ? On 
the contrary, is it not proved by all experience to be in- 
dispensibly necessary. Or, suppose it to be agreed that 
this may be done by laws that shall operate on existing as 
well as on future contracts 1 Is that immoral or unjust ? It 
is salutary and necessary, and what any people would 
adopt, and what I think those who have made the objection, 
would, if called upon to make a frame of government, 
themselves adopt without hesitation. It is a power neces- 
sary for the purposes of humanity and justice. It is a 
precaution necessary for the peace and safety, and well 
being of the community ; even for the creditor himself, 
whose interests are involved in the common fate and are 
in danger from whatever threatens the public tranquility. 

If such a power be given by the fundamental law of soci- 
ety, by the constitution — is it immoral or unjust to exercise 
it? Hitherto we have only been looking at the right and 
interests of creditors, forgetting that the unfortunate debtor 
is also a citizen ; that //e has rights, which we are bound 
tp consider and respect. Indeed the whole argument 
against the bill, seems to have been directed by an over 



302 

jealous concern about creditors, as if the constitution had 
been made for them alone, and the debtor had no part or 
lot in the matter. It might be sufficient to say, that if the 
authority exist, every contract is of course subject to its 
exercise. But that may perhaps be thought too technical 
— let us take a more practical view of the matter. "The 
interests of debtor and creditor," says the Speaker, "are 
directly opposed, what you do for one, must be at the ex- 
pense of the other, and that is not just. 1 ' In entering into 
this social compact, or forming constitutions of government, 
men are to be regarded as equally capable of becoming 
debtors or creditors, they may equally expect that they or 
their descendants will be fortunate or unfortunate, and in 
making the concessions by which government is empower- 
ed to enforce the demands of justice, they are therefore 
equally concerned in providing for these contingencies. 
Their interests are, at that time, not adverse, but the same. 
Jn the course of time, what was common to all, is displaced 
by individual circumstances, what was foreseen and intended 
to be provided for, actually happens ; one pursues an oc- 
cupation of risk, the other has the more stable dependence 
of a profession or farm; one is fortunate, another unfortu- 
nate ; one is rich, the other poor: one a debtor, the other 
a creditor. Their interests become adverse, their feelings 
opposed, and then it is that the umpire of the law inter- 
poses, clothed with the authority they have themselves 
conferred, while they could regard the matter with impar- 
tiality. And the umpire is bound by the true spirit of the 
compact to execute it in this, as in every other provision. 

It is a great mistake to suppose, that the creditor, or the 
debtor either, who comes under such a constitution, to ask 
you to execute the authority conferred, seeks from you a 
dispensation of mercy or charity. It is justice he demands. 
It is his right, and we arc not warranted in repulsing him 
from the door, telling him " begone, we have no charity to 
bestow." All are to be protected according to their exi- 



303 

gencies, not one at the expense of another — neither is it 
any answer, to say (as has been said) " we do not want it ;" 
we might give the same reply to every class of petitioners 
who come for aid or relief. If the savage foe were on our 
borders, and the inhabitants, threatened with cruel death, 
were obliged to abandon their lands and houses, we might 
say, " what is that to us, we have no lands there, we have 
no fear of the enemy, we do not hear the frightful sound of 
the war-whoop, nor see the gleam of the tomahawk." But 
what would be thought of such an answer? If there be a 
class of men whose pursuits and relations are such that a 
peculiar legislation is necessary — and such there is as the 
gentleman from South Carolina, (Mr. Lowndes,) has most 
clearly established, it is for them that this power was in- 
troduced into the constitution, they have a right to ask, and 
we are bound to grant its benefit. The merchants of the 
United States, aye even the unfortunate insolvent ones, do 
not come as beggars to the door, and solicit it as a favor, 
they demand it as a right. You have scrupulously, and 
to the letter, carried into effect all the powers for the secu- 
rity of property, and for enforcing claims. You have sur- 
rounded the prosperous with safeguards, as it was right you 
should do- For citizens of different states, and even for 
the foreign creditor you have established impartial tribu- 
nals, above the reach of local prejudice. You give them 
the most powerful process of the law,, and you back it 
with all the force of the community to compel obedience. 
They rest in peace, and the law watches over them and 
their possessions, a sleepless and untiring sentinel. All 
this is right. But here stands one solitary provision for 
the unfortunate, and only one; one stipulation of the 
social compact, for the case of extreme and unmerited dis- 
tress ; one single security for the inalienable right " of lib- 
erty and the pursuit of happiness," and that alone re- 
mains without eflcct, sacrificed to imaginary notions of 
abstract justice. 



304 

Can it be according to the theory of such a government, 
or is it just, that the power should forever remain dormant? 
Is it the right of every creditor, not only to be thus aided 
to enforce his demands to the extent of all the means his 
debtor possesses, but also to use forever the whole power 
of the community to oppress the unfortunate, to hang over 
him in terror, to palsy his efforts, and to break his heart? 
The debtor, as well as the creditor, is a member of society, 
bound to contribute to maintain its peace, and defend it 
from the assaults of external force, and even more likely 
to be obliged to do so in person, because he cannot pur- 
chase exemption. He helps by what strength he has, to 
uphold the institutions upon which the security of all de- 
pends. And what is this imaginary demand of justice? 
Not worth estimating. If all the insolvent debtors in the 
United States were enumerated, and their debts scheduled, 
I ask, gentlemen, to turn this calculation in their minds, and 
tell me how much the chance of obtaining payment by 
coercion of law is worth. Is it the thousandth part of a 
dollar? And to interfere with this, is called impairing the 
obligation of contracts, and denounced as immoral and un- 
just. Sir, by the bill on your table, the creditor gets more 
than he can lose. He gets the chance of his debtor be- 
coming again an industrious man, and acquiring the means 
of paying his debts. I am not indulging in a mere dream; 
I have an instance at hand. There is at this moment within 
the sound of my voice, a member of this House, who was 
a certificated bankrupt under the act of 1800. Relieved 
by that much calumniated law, he was enabled by his in- 
dustry to acquire the means of paying his debts — to his 
honor be it told, he has fully paid them, and now enjoys as 
he deserves the highest confidence of society. Let one in- 
stance of a similar occurrence be shown in the case of an 
insolvent law, and I will then produce another. 

Creditors, as a body, therefore, are evidently gainers by 
such a law. They have a prompt and efficacious remedy, 



305 

to secure to them the most equitable disposition of the 
debtors' effects, and they have not a worse, but it may be 
fairly asserted they have a better prospect of obtaining the 
residue after a discharge than they had before. Society is 
a very great gainer, by the restoration of a useful citizen 
to the pursuits of wholesome industry. The honest debtor, 
who has some interest in the social compact, is also a gainer. 
And can it be, is it possible, I beg to repeat, where the in- 
terests and wishes of the larger portion of creditors, not 
only in general, but in any given case, concur with the in- 
terests of society and the interests of the debtor, that the 
demands of morality and justice do still require, that they 
should all give way to the mere will of a minority, or even 
of a single creditor? Two thirds unite — it is insufficient. 
Unless all agree, there is to be no relief. What is this, but 
to surrender to every creditor; whatever may he his cha- 
racter, rapacious, cruel or unfeeling ; whatever may be his 
feelings, morbid, violent, and implacable ; even though his 
passions may be excited by imaginary wrong ; when he is 
in the worst condition possible to form a judgment (and 
such there may be in every case,) — what is it, I say, but 
to surrender to him, in his own case, the authority which 
society at its formation, contracted to exercise with impar- 
tiality at least, if not with something of parental tender- 
ness and humanity 1 

To such extravagant lengths do these new refinements 
carry us ! This is the morality which one gentleman prized 
so highly, that he said he would rather witness the destruc- 
tion of a whole generation of men, than the passage of the 
bill on your table, and another, that he would rather see a 
torch put to our navy, and our merchant ships the food of 
worms ! Neither of them meant what he said. It was only 
a violent figure. The destruction of a generation of men, 
is too awful for contemplation, too large for our conception. 
And as to our navy, " the bit of striped bunting," that has 
floated in triumph over the heads of our gallant c?untry- 

39 



300 

men, the stars that lighted them to victory, are as much 
above all price, as the miserable right to torment a ruined 
merchant with the process of the law, is beneath all rea- 
sonable estimate. 

How, then, can it be said that it transcends the power of 
society, to possess such an authority as is now contended 
for 1 It surrenders no inalienable rights. It is a fit, an use- 
ful and a necessary authority, without which no civilized 
society would be deemed to be well constituted — without 
which, no well constituted civilized society has existed, and 
which no one heretofore ever dreamt could be dispensed 
with. The writers of the " Federalist" in a single sentence 
express their sense of its necessity on account of its " inti- 
mate connexion with commerce." 

But we are told by the Speaker (Mr. Harbour) it is wrong 
to give the relief proposed, because it puts charity to the 
debtor, which is a duty of imperfect obligation, above, jus- 
tice to the creditor, which is a duty of perfect obligation. 
I would not stop to notice this argument, if it had not been 
urged on a former discussion some years ago, and from its 
being repeated now, we may suppose that in his own esti- 
mation at least it has some weight. I need not say, that 
the righls of the debtor are as much a matter of strict jus- 
tice as those of the creditor; they are founded as strongly 
in the institutions of society, and as much a part of the social 
compact. That would be a sufficient answer. — Neither is 
it necessary to detain the House by inquiring what it is that 
makes the distinction between duties of perfect, and duties 
of imperfect obligation. We may perplex ourselves and 
others, but can do no good by pursuing these distant ele- 
mentary researches. The only distinction, perhaps, that 
can at last be relied upon, on this contested point, is, that 
what the law enjoins, is a duly of perfect obligation, and 
what it does not, is imperfect, which would also be a suffi- 
cient answer. — Let the argument stand, however, and its 
premises be taken for granted, what is it worth ? The right 



307 

of property is of the perfect kind — giving alms to the poor 
is imperfect — and yet the poor laws compel us to contri- 
bute from our means, to the relief and support of the poor. 
The policy of such provisions has of late been very much 
questioned, but no one has ever doubted their justice, or 
the rightful power of the legislature to establish them. 

But to return from this excursion into distant regions, 
not very profitable, and I fear extremely tedious, let us 
come to the constitution of the United States, where we 
shall at last be upon tangible and solid ground. Taking it 
for granted, as we must do, that the people of the United 
States, in framing their fundamental law of government, 
their social compact, were competent to give to congress 
the power to make a bankrupt law, to operate to the ex- 
tent contemplated by the bill, have they given that power? 

It is not to be denied, that before the adoption of the 
constitution, the states individually possessed the power ; 
or, that many of them exercised it, and were in the actual 
exercise of it at the very time. It is now certain that the 
states surrendered the power, and as to them it was extin- 
guished. The argument is that it was not given to the 
United States, and therefore that it was extinguished alto- 
gether, and finally. 

Here let us pause — a deviation so extraordinary from the 
track of all civilized communities, a departure from the 
course followed and approved by the states who formed the 
confederation, the voluntary destruction of a power which 
the commentators on the constitution declared to be "inti- 
mately connected with commerce," could not have hap- 
pened without strong reasons, and we should expect to see 
it signalized by something emphatic and plain to every ap- 
prehension. Is there any thing of the kind? Not at all; 
we must go in quest of it among the schoolmen and the 
casuists, and instead of looking into the constitution we are 
to explore the original grounds of right and wrong. 

The constitution gives us the power,. in plain, strong, and 



308 

comprehensive terms, without limitation or exception, (save 
that they are to be uniform throughout the union,) embrac- 
ing all laws " upon the subject of bankruptcy," in as full a 
sense as those terms were understood at the time by any 
state or nation. If we could in any way persuade ourselves 
to be at a loss for their construction, we need only look to 
the fact, that in the very city where the convention were 
sitting, there was then in operation a law " upon the sub- 
ject of bankruptcy," which discharged the effects as well as 
the person of the bankrupt. The power, generally given, 
includes every variety of its exercise. It must necessarily 
include that which is essential to its salutary exertion ; and 
it has been already demonstrated, by arguments which 
need not now be repeated, that the discharge of tbe debtor 
is not only just and right in itself, but is indispensable to 
the efficacy of the law in favour of the creditors. The gen- 
tleman from South Carolina, (Mr. Lowndes) has conceded 
this. Experience has confirmed it. All mankind would 
join in condemning a law that would strip the unfortunate 
man of all his means by a summary process, and leave him 
without the hope of relief; and every unfortunate man, 
thus circumstanced, would be strongly tempted to keep 
back, by fraudulent concealment, some part of his property. 
There must be mutuality even here. 

But this will " impair the obligation of contracts," it is 
said, and the constitution of the United States has itself 
denounced that as immoral, by prohibiting it. to the states — 
which is in effect to argue, that because there is an express 
denial of the power to the states, therefore there is an im- 
plied one to the union, though the power is expressly given 
to congress. It is quite certain, that in a moral point of 
view, a bankrupt law does not impair the obligation of con- 
tracts — no human legislation can absolve the conscience, 
as has already been remarked. The uniform current of 
decision is, that a discharge under the bankrupt law, leaves 
the debt in force upon the conscience and honour of the 



309 

debtor, so as to be a sufficient foundation for a new pro- 
mise. It takes away the remedy, which I admit might be 
of great importance. The error lies in assuming, that the 
prohibition to the states is constitutional evidence of the 
immorality of the power. It is not so — it is not a moral, 
but a -political restraint, intended to preserve the harmony 
of the union, by denying to the states powers which ought 
to be exercised uniformly, and not according to the local 
interests or wishes of each — which were therefore expressly 
given to the union, and for that very reason not necessary 
to be retained by the states. Upon this ground, the deci- 
sion of the Supreme Court of the United States is fully vin- 
dicated. The clause in question might be interpreted in 
one of two ways; the moral interpretation (the narrowest) 
would be, that such a law was not within the prohibition ; 
the political interpretation, would be more extensive, look- 
ing to the great objects intended to be secured. In what 
sense, were the Supreme Court to understand it, the most 
limited, which would leave an opening for all the evils 
intended to be provided against, or the most general, which 
would effectually guard against them all, and could do no 
injury, because congress still jiossessed the power? They 
expounded the clause in its fair sense, according to its intent 
as a political restraint, in a political instrument. 

To argue that a power is denied to the union, because it 
is denied to the states, is to reverse all the rules of just 
reasoning, and would strip congress of some of the most 
confessedly useful and necessary powers. It would be 
much more like the ordinary rule of construction to say, 
that what is prohibited to the states, and not prohibited to 
congress, was not intended to be prohibited ; and in the in- 
stance now under consideration, the omission was not acci- 
dental, but manifestly deliberate and by design. " No state 
shall pass any bill of attainder, ex post facto law, or law 
impairing the obligation of contracts." Congress shall pass 
" no bill of attainder or ex post facto law." It is impossible 



310 

for any one to believe, that these two prohibitions were 
intended to mean the same thing, or that an entire clause, 
of great significance, was dropped by neglect or inadvert- 
ence from the latter. 

It could not be ; for congress have the power to impair 
the obligation of contracts, and those who framed the con- 
stitution, knew they must have it. Be not alarmed ; I do 
not contend for any thing so extravagant, as that congress 
may legislate directly upon contracts, to impair their obli- 
gation, and for no other purpose. But here are certain 
great powers expressly given, for the public benefit, which 
in tbeir exercise, not only may, but must have that effect, 
and all that is contended, is, that congress are not on that 
account restrained from exercising the powers granted. 
Take the power to declare war, for example. There may 
be a contract of partnership between a person residing in 
the United States, and a person in England, to continue for 
a number of years — the two countries being at peace when 
the partnership is entered into. War is declared : what is 
the effect? The contract is dissolved, not only as to the 
partners, but as to all other persons. That was the case of 
Griswold vs. Waddington. Take a case of two citizens, 
resident in the United States. One contracts to load, and 
the other to carry a cargo from the United States to a dis- 
tant country, for a certain freight or hire to be paid. The 
cargo is loaded; the ship is ready to proceed; great ex- 
penses are incurred — and then comes an embargo, laid by 
virtue of an implied power. What is the effect upon the 
contract ? It is suspended. In the same case, war is de- 
clared against the country to which the vessel is destined. 
What becomes of the contract? It is dissolved. I need 
not refer to the power of " coining money, and regulating 
the value thereof, and of foreign coins," of issuing paper 
money or the like. They may all operate upon contracts. 
The power to establish " uniform laws on the subject of 
bankruptcy," is given as expressly and clearly as any of 



311 

them, and is no more to be repealed by this ideal limitation, 
than they are, even if it should have the effect of impair- 
ing the obligation of contracts. In fact, the constitution 
has transferred the power from the states to congress, and 
it is natural to suppose that it is transferred as full and 
entire as it existed before. 

There are two very obvious rules of construction to be 
applied to this instrument, which put an end to all such 
doubts, and are necessary to preserve its integrity. The 
first is, that where a power is expressly given, it is to be 
understood if not in its largest at least in its natural and 
obvious sense — because when limitations are intended, they 
are expressly assigned. The other is, that where a power 
is given by implication, it is to be implied no further than is 
necessary, to carry into effect powers expressly granted. 
The one of these rules is just as sacred as the other, and 
the departure from either has the same consequence, of 
throwing us upon the unlimited doctrine of implication, and 
subjecting the instrument to every sort of interpolation that 
ingenuity can devise. Instead of a plain text, to be ex-, 
pounded fairly, according to the natural import- of its terms, 
it will become what our own notions may from time to 
time happen to tell us it ought to be, till it lose all claim 
and title to respect. 

The constitutional power being thus clearly established, 
it is then a part of the social compact, and there is a high 
constitutional duty to fulfil, of permanent and invariable 
obligation towards those who are concerned in its exercise. 
It is as much our duty as it is to establish courts of justice. 
Do we mean to contend then, we are asked, that every 
power given by the constitution, is to be kept always in 
exercise ? No. There are some which, from their nature, 
are only to be occasional, as that of war. There are 
others which regard our social and domestic comfort. We 
do not mean that even this authority is to be so understood 
in the most literal sense. But we do mean to sav, that 



312 

when those call upon us who are interested in its exercise, 
for whose benefit and well being it was chiefly intended, 
even though they be merchants or insolvent debtors, it is 
no fit answer to tell them that we do not want i(, or that 
bankrupt laws, under any circumstances, are unjust, and 
ought not to be passed. This is an argument against the 
constitution itself. If they stand in need of it, and make 
out a proper case, it is no appeal to our sympathy, it is no 
claim upon our charily, they are preferring but a demand 
to have a social stipulation executed in their behalf, which 
I again say we are bound to execute, unless strong reasons 
of unquestionable expediency stand in the way. 

It is due to the states who have surrendered the power, 
and are no longer able to give adequate relief — it is due to 
their citizens, who now look in vain to state laws, that we 
shall not tell them that here too they must look in vain — 
that the constitution has put an express restraint upon the 
states, from policy, and we now put an implied restraint 
upon ourselves, from abstract notions of what the constitu- 
tion ought to be. The states cannot, and we will not give 
relief. 

Do they ask for it ? We have memorials from Salem, 
from Boston, from New York, Philadelphia, Puchmond, 
Charleston, and elsewhere, not from debtors alone, or even 
principally, but from creditors. The chambers of commerce 
of New York and Philadelphia, represent the body, and 
express the feelings of the commercial community of those 
places. The memorial from Charleston, is from men of 
high respectability, acting on behalf of the merchants, and 
stating with great force, in a comprehensive argument 
entitled to the serious attention of every member of the 
house, the inefficiency of the present laws to do justice to 
creditors, and the indispensable necessity of a bankrupt 
law, for their aid. There is, too, a memorial from Nash- 
ville in Tennessee, presented at the last session, setting 
forth the claims of the debtors with unquestionable truth. 



313 

and with a strength that truth alone can give. There is, 
it is true, a remonstrance from Boston and one from New 
York, and perhaps from some other quarter, but they bear 
no comparison with the weight of opinion and feeling ex- 
pressed in favour of the law, nor do they give any answer 
to the reasoning on which they are founded. Among those 
who are interested, and have most knowledge of the sub- 
ject, the entire body of merchants in the United States — 
who 1 must here take leave to say are as much attached 
to our institutions, have as deep a stake in society, are as 
strongly connected with the country by every sort of tie, 
are as useful, as honourable and as well entitled to consid- 
eration, as any class whatever— -T affirm, that in that body 
there is as much unanimity as ever there was on any great 
question. 

Do they make out a case for our interposition ? The 
constitution would seem to answer that enquiry, and to put 
it upon our opponents to show, that it ought not to be car- 
ried into execution. But the case is fully made out, and 
without restating what I formerly advanced, I would say 
that as to the debtors, especially, it is marked by a peculi- 
arity of the most decisive character. It is not denied, it 
cannot be denied, that if ever there existed circumstances 
which loudly and imperiously called for a bankrupt law, 
for their relief, they do now exist — if the necessity be not 
at this time sufficiently manifest, it never can be so. The 
unexampled change through which we have passed, the 
political measures of restriction, war and peace, that have 
followed each other with such rapidity, the unprecedented 
reduction of the circulation, all these, the acts of the 
government it is admitted, have swept with the destructive 
energy of a tornado, producing an extent of individual 
calamity, such as never before was witnessed, and it is to 
be hoped will not in a long course of time be witnessed 
again. Skill and prudence, could no more avoid their in- 

40 



314 

fluence, than they can successfully contend with the fury 
of the elements. 

This, I say, has been admitted. Some gentlemen have 
gone so far as to acknowledge, that they would be willing 
to make provision for the unfortunate. But will not — and 
the question seems to stagger and confound their resolution 
— will not some who are unworthy, avail themselvos of it 1 
Yes, they will. Let it be admitted. What then? Are 
you to wait till you can form a system so complete, and 
can administer it by such perfect agents, that none but the 
meritorious can possibly receive the benefit 1 If the boun- 
ties of Providence were withheld from us, till none could 
enjoy their blessings, but those who deserve them, what 
would be our condition ? But the sun shines upon the just 
and upon the unjust — And, if it should so happen that the 
vivifying power of the present bill, while it imparts life and 
animation to a hundred of the unfortunate, should reach 
one fraudulent or dishonest man, or even ten, it is not on 
that account to be rejected. The balance would still be 
in its favour, by the undoubted good it would do. The 
humane maxim of our criminal law, is, that it is better ten 
guilty men should escape, than one innocent man should 
suffer. But here you reverse it — you condemn ten inno- 
cent men to suffer, that one guilty man may not escape. 

I forbear to press the great national considerations which 
are so well stated in the memorial from Charleston, and 
have been fully presented in the debate. It is needless to 
insist upon the inadequacy of state provisions, since the 
decision of the Supreme Court of the United States has 
made it so painfully familiar. Nor need I advert again to 
the dangers which threaten from state legislation ; they 
have been already pointed out by others. But, I will has- 
ten to reply to some other arguments advanced against the 
bill, distinctly admitting, that if our opponents can satisfac- 
torily show that the law would have a tendency to pro- 
duce or to increase frauds, to demoralise societv, and in 



315 

that way to do more harm than good, they will then have 
made out a strong objection to its passage — an objection 
to be fairly weighed, and not lightly estimated, even in 
comparison with the high considerations of justice and 
humanity, which demand it at our hands. 

For this purpose it is urged, and with apparent triumph, 
as if it were a conclusive argument against the adoption of 
a system of bankrupt law, that upon a recent inquiry, car- 
ried on by order of the British house of commons, frauds 
and abuses to a great extent, have been proved to exist in 
England. The fact is so — and if the concession be of any 
value, gentlemen have the full benefit of all the objection 
it affords. But before we advance from it to a conclusion, 
so important as to involve the fate not only of the present 
bill, but of all future efforts to do what the exigency of the 
case seems so strongly to call for, let us first be sure that 
the conclusion is warranted. I will not rest upon the 
answer — a sufficient answer, which has already been given 
— that these defects have not been of such a nature as to 
induce any man in that nation seriously to propose an abo- 
lition of the system, but only an amendment of it ; that the 
bankrupt law is still in force, a monument of the conviction, 
that the evils belonging to it, great as to us they may ap- 
pear, are more than overbalanced by the good. But let 
me ask, does any one who has carefully examined the evi- 
dence and the report, believe, that these abuses and frauds 
are inseparably incident to such a law ? That a law Which 
proposes to take possession of the effects of a failing debtor, 
and distribute them equally among his creditors, and upon 
certain terms to give a discharge, must necessarily and 
inevitably be the prolific parent of vice and crime 1 If he 
does, he comes hastily to a harsh conclusion, which I believe 
to be wholly unwarranted. I believe and think I can 
satisfy any reasonable man, that these frauds and abuses 
are owing to other causes ; to the state of society; to de- 
fects in the provisions of the law ; and to errors and mis- 



316 

conduct in its administration. It might here be fairly put 
to gentlemen to consider, that there are bankrupt laws in 
every state of Europe, that is civilized and commercial ; 
that in these, no such abuses and frauds have occurred, or 
if they have, the evils that have been put down are greater 
than those which have sprung up; the system is still re- 
tained. Whence is it, then, that these acknowledged 
abuses and frauds have proceeded in England 'I I would 
answer, from the state of society, that great cause in which 
has originated so many and such various modifications of 
vice and crime, and especially of every sort of fraud. The 
chief sources from which they have flowed are ignorance 
and poverty. There is another, to be noticed presently, 
more pregnant of evil, perhaps, than either or both — take 
a single fact. The commitments of the united kingdom, in 
the year 1818, for crimes of every sort, were no less than 
107,000. The number appears incredible, but it is liter- 
ally true, all the code of sanguinary punishments to the 
contrary notwithstanding. The state of things there, and 
especially in the metropolis, has been unfolded in many 
ways, and is altogether shocking and deplorable. Look at 
the reports upon the police of the metropolis — upon men- 
dicity — upon the state of the prisons, as exhibited by Bux- 
ton — upon every thing of internal regulation. It is one 
dark picture of vice and crime and misery. We know 
that there is a great surplus of ingenuity, excited and quick- 
ened by the severe pressure of poverty. 

Is it too much to say, that in some shape or other, fraud 
and corruption have intruded themselves into all the in- 
stitutions of that nation, even those which are confessedly 
praise-worthy and worthy of imitation — even into the insti- 
tutions of learning and humanity. We should all agree, 
with one accord, that nothing can be more useful than edu- 
cation ; nothing more honourable as well as useful, than 
establishments for its diffusion, and especially among the 
poor; nothing more unexceptionably good than endow- 



317 

merits for the support of such establishments, from the 
munificence of individuals or the state ; and to her honour 
be it said, no nation ever existed, in which they were 
more liberal or more extensive than in Great Britain. Have 
they escaped the infectious touch of fraud and abuse ? He 
must have a very slight acquaintance with what is passing 
about us, who will affirm that they have. This subject, 
of charitable foundations and provision for the education of 
the poor, as well as that of the bankrupt laws, has engaged 
the attention of parliament. Committees have been ap- 
pointed, evidence taken, and finally, a commission esta- 
blished for prosecuting the inquiry, and applying the reme- 
dy. What has been discovered ? Schools amply endowed, 
without a single scholar ; masters liberally paid, perform- 
ing no duty ; the funds, in short, destined for the purposes 
of charity and education, diverted entirely from their ob- 
jects, and fraudulently applied to the use of those for whom 
they never were designed. Let me take another instance 
— a melancholy one, indeed, where one would have hoped 
to find an exception. I mean the inquiry into the state of 
the lunatic asylums in England, which was also a parlia- 
mentary inquiry. If there be any thing which would ap- 
pear to combine the strongest claims upon the justice and 
the sympathy of man, it would be this provision for the 
unfortunate in whom the divine light has been extinguished, 
or so obscured as to be no longer sufficient to direct their 
footsteps — who seem, as it were, to be thrown by Provi- 
dence upon their fellow creatures, and ought to quicken in 
us an unmixed feeling of compassion and humanity. Yet, 
what has been the result of the inquiry ? The funds des- 
tined for their support, diverted, fraudulently diverted from 
their purpose ; with few exceptions, the whole system, con- 
ceived in the best and noblest spirit, turned into a specula- 
tion upon human misery ; the helpless victims of this awful 
dispensation, subjected to the more than brutal ferocity of 
beings in the shape of men ; suffering from filth and want, 



318 

neglected and robbed ; yes, the miserable insane robbed of 
the provision which humanity had made for their support. 
I refer to the minutes of evidence to bear me out, and es- 
pecially to the case of Norris, in page 175, and to pages 11, 
46, 90, &c. Indignation at the unfeeling cruelty and ava- 
rice of the guardians and keepers of these institutions, is 
swallowed up in horror at the scenes disclosed. 

It has already been stated, that besides ignorance and 
poverty, there is another great source of evil, (itself both 
cause and effect) perhaps more productive than cither or 
both, and embracing quite a different sort of people, those 
who are neither poor nor ignorant, who heave not the temp- 
tation nor the excuse for vice or crime, and who cannot be 
said to be guilty of crime — they are not pick pockets nor 
highway robbers. It is the universality of corruption. I 
am not to be charged with the want of justice or even with 
the want of charily. I will state nothing but upon the 
highest evidence. I will not imitate the example of Earl 
Grey, who has publicly given his sanction to atrocious 
calumnies respecting our country, on no better authority 
than that of Fearon. England is unquestionably a great 
nation — great in arts, in arms, in letters and in science; 
great in industry and wealth, great almost beyond example 
in martial renown, great in moral and intellectual courage. 
Some of her best heads, and her best hearts, are now ac- 
tively engaged with steady resolution in the endeavour to 
reform her institutions, and repair the injury which time 
and circumstances have done to the social edifice, and it is 
to be hoped they will succeed. I would not, needlessly 
exhibit, even what the truth will fully justify, for there is 
no pleasure in stating disagreeable truths. That nation 
has much to rejoice in, and she has much to mourn over — 
but when the inquiry about her bankrupt law, is thus held 
up to warn us, we should forget what we owe to ourselves, 
and what we owe to the question before us, if we did not fair- 
ly meet the argument, and show how* much it is really worth. 



319 

Nothing shall be stated without the highest authority, and 
as I have heretofore appealed to evidence taken by order 
of the house of commons, let me at present appeal to the 
assertion of a very distinguished member of that body, now 
no more — a man warmly attached to his country, a scholar 
and a gentleman — a model, it was said, of the best of his 
nation — one whose reasonings were sometimes paradoxical, 
but always ingenious and elegant — one, who above all men 
was accustomed to speak the truth fairly and manfully and 
fearlessly, but never in the spirit of cant or faction — I mean 
the late William Wyndham. He plainly avowed in par- 
liament, that corruption was a part of the system of gov- 
ernment in England, and he boldly vindicated it as a neces- 
sary part of that system, affecting and regulating all the 
rest, insisting at the same time that it began with the peo- 
ple, and not with the government. It would be tedious to 
go into particulars. What is the result? Universal indul- 
gence, a delicate forbearance to expose or to correct abuses, 
destructive of every good purpose, and ruinous to all but 
those who profit by the abuses themselves. They remain 
uncorrected until they force themselves into notice by their 
own enormity, or are dragged into view by intrepid men 
like those who have instituted each of these inquiries. Is 
it not evident that this tenderness for each others frailties 
is felt in the administration of the bankrupt law, and is it 
not rebuked in the report of the committee? 

I might bring into the view of the house, a late election 
of a mayor of Liverpool, where for the first three days, the 
candidates at the close of the polls had each the same num- 
ber of votes. The regular price of a vote on the first day 
(as the newspapers state) was seven shillings. As the con- 
test became more animated, it rose to — I do not recollect 
how much — perhaps as many guineas. Or I might remind 
them of the memorable account given by Lord Cochrane 
in the house of commons of the expenses of his first elec- 
tion, when voters were publicly invited to come and receive 
ten pounds ten shillings. 



320 

What is the just inference from all this? Because elec- 
tions in England are the scenes of shameful and notorious 
traffic, where votes are bought and sold; because electors 
are bribed, and the elected (according to Lord Cochrane's 
statement) must repair the losses of a costly election by 
selling himself — that therefore you will have no elections? 
You will have no establishments of charity or letters or 
science, because in England they have run to waste or 
worse ! You will not even have a receptacle for the unfor- 
tunate maniac ! 

And yet, each of these conclusions would be just as well 
warranted, as that you will have no bankrupt law ; for it 
is plain as evidence can make it, that the evils complained 
of, are not evils necessarily or even naturally belonging to 
the system, but to an imperfect and bad administration of 
it, operating upon a vicious state of society. " Principles, 
and not men," was once a favorite maxim. A sagacious 
and highly gifted man, whose life was one continued politi- 
cal struggle, in an unfinished work, which was the fruit of 
calm meditation, aided by his great experience and know- 
ledge, has laboured successfully to prove that the maxim is 
false, and that good men arc at least as important as good 
principles. He has clearly established that the best laws 
are of no avail if bad men are to administer them, and has 
cited one instance of a law of infinite value coming into 
existence in the very worst times. I allude to Mr. Fox's 
historical fragment. " Principles and men" is much nearer 
the truth. 

We have all the institutions which have been now ad- 
verted to. We have elections without bribery — we have 
establishments of education and charity, without robbery 
of the poor — we have lunatic asylums where the unhappy 
are treated with tender and kind attention — yes, one I know 
of, and if it were allowable on such a subject to indulge a 
feeling of pride, I would say that I am proud of living 
among a people who have established and maintain such an 



321 

institution as the Pennsylvania hospital. I believe we can 
have a bankrupt law (as we have had) without any of the 
frauds and abuses that occur in England. 

Time will not permit me to enter at large into an exam- 
ination of the defects in the bankrupt law of England, and 
its administration, which have given occasion to the general 
censure to be found in the minutes of evidence. Some of 
them have been already pointed out ; and they are them- 
selves sufficient to justify the witness, who says " the bank- 
rupt law, as now administered, is a disgrace to the coun- 
try." In London, the business is transacted in tumult, 
noise and confusion which forbid all deliberate examination 
— In the country, the solicitor who sues out the commission, 
is permitted to name the commissioners. Is it wonderful, 
that the commission should become " stock in trade 1" A 
case occurred, where one partner of a firm was petitioning 
creditor; another was solicitor ; a third, commissioner, and 
a fourth, assignee. The Lord Chancellor expressed " strong 
indignation," and said, " unless the court holds a strong 
hand over bankruptcy, particularly as administered in the 
country, it is itself accessary to as great a nuisance as any 
known in the land." This, and the accompanying remarks, 
are quoted with great emphasis against us in the present 
debate. Now it never appears to have occurred to the 
Lord Chancellor, that he had no one to blame but himself, 
and that all this gross abuse which so excited his indigna- 
tion, arose from his own neglect or from his own excessive 
delicacy, to call it by no harsher name. How did it hap- 
pen, that commissions became stock in trade, to the great 
scandal of the law ? The answer is plain, because he 
suffered solicitors to name the commissioners and direct the 
execution of commissions, instead of doing it himself; he let 
the authority fall from his own hands, to be caught up and 
exercised as chance or interest might direct, and it fell 
into base and unworthy hands. And why did he suffer 
this ? Mark well the reason, it speaks a language which 

41 



322 

it is impossible to mistake or misunderstand, and, being 
characteristic of the administration of the law, throws a 
broad light upon the whole subject. The nomination of 
commissioners by himself, " he considered as an exercise of 
favour, which was unfair towards those whom it excluded." 
(Min. p. 57.) This is the same Lord Chancellor who is 
quoted for his strong indignation at the abuses in country 
commissions, and who tells us it is necessary to hold a 
" strong hand" over them ! The committee rebuke him 
in their report for his extreme delicacy. Is it wonderful, 
that where the first step is towards any thing but the fair 
execution of the commission, the whole should end in some- 
thing which has no regard to " the interests of the estate 
or the creditors V This cannot happen under the present 
bill. 

I forbear to remark upon the delays that must arise 
from the circumstance of all questions of bankruptcy com- 
ing before a single judicial officer already overloaded by 
his various avocations; upon the great expense of all judi- 
cial proceedings in England; upon the excessive severity of 
the penal provisions in the English bankrupt law, which 
has entirely defeated their execution, because it is repugnant 
to every feeling of justice. Whoever will be at the trouble 
carefully to examine the evidence, will see these things for 
himself; he will find most of them stated in the report of 
the committee ; and if he will then turn his eye to our own 
country and to the bill on the table, he will be satisfied 
that there is no ground for apprehension of the frauds and 
abuses which prevail in England. 

Our opponents place much reliance also upon the opera- 
tion of the act of 1800, or rather the hasty repeal of it. This 
is evidently their favourite ground, upon which they appeal 
with great confidence to the public sentiment of the coun- 
try. That law, says one of them, was not suffered to live 
out its short day — it sunk under the weight of its own 
iniquity. Apart from general denunciation, which amounts 



323 

to nothing, what is affirmed against that law, or what can 
with truth be affirmed against it 1 Let us come to parti- 
culars, to the unvarnished matter of fact, and not be 
carried away by sweeping allegations, which may be en- 
tirely unfounded. It cannot be asserted with truth, nor 
have I heard it asserted at all, that there was fraud and 
abuse in its administration. It was every where executed 
by respectable men, with fidelity and intelligence. Nor 
has it been stated, nor do I believe it can be truly stated, 
that frauds to any considerable extent were committed 
under it or by its means. There may have been some, as 
there probably will be under every system of bankrupt or 
insolvent law, and as there are, unquestionably, wherever 
insolvencies occur, even though there be no bankrupt laws 
at all; as there are, even where rigorous imprisonment for 
debt prevails. / hazard nothing in saying it was belter 
administered titan any insolvent laxo in the United Stales 
ever has been, or probably ever will be. 

Neither has it produced the great evil, so much appre- 
hended, of certificated bankrupts afterward acquiring 
large fortunes and riding over their destitute creditors 
without paying their debts. That is a mere creature of 
the imagination, of which I will say a few words presently. 
And here I must express my obligations to the gentleman 
from South Carolina (Mr. Blair) for bringing within our 
reach the means of knowledge upon what would otherwise 
have been matter only of speculation and opinion ; and 1 
confess that the examination of the lists, especially of that 
from Pennsylvania, has allbrded views that are highly 
encouraging of the practical operation of the law. That 
list contains about two hundred cases, (fewer than I sup- 
posed) and it gives the names of the persons who were 
bankrupts, of most of whom I have been able to obtain 
some knowledge. By far the greater part of them were 
worthy men, who well deserved the relief. Of the two 
hundred in the list, seventy three are since dead ; there 



324 

may be more. Not one of them died rich. Of the living, 
whose real condition is still uncertain, there are but two 
who are reputed to be rich. One of the two, I have under- 
stood, has paid his former debts, and it is probable the other 
has, for I do not recollect to have ever heard any com- 
plaints made of him. The rest are, generally, asjar as my 
knowledge of them extends, men of good character and 
useful citizens. Some of them have been in the public 
service, and others occupy respectable and useful places 
in society, but of an unambitious and in a certain sense 
inferior kind — that is, inferior to their former occupations — 
which enable them with industry to maintain themselves 
reputably, and to educate, and bring forward their children 
qualified for usefulness in their day. It was probably the 
same in other districts — and if such be the practical opera- 
tion of the law, who will say it is not desirable? 

Why, sir, it is a mere phantom that has haunted the 
gentleman from South Carolina, (Mr. Blair,) raised by 
dwelling too long upon a single view, and that a conjectu- 
ral one, instead of looking at the truth which experience 
teaches, or which reflection, directed by what we all know, 
instead of being vaguely indulged, would equally teach. 
He is afraid of the demoralizing example of certificated 
bankrupts acquiring wealth. Is there any such danger? 
Let him examinine the thing soberly and candidly. Let 
him suppose one hundred men, for instance, to engage in 
commercial enterprize, beginning in the spring time of life, 
with all the advantages of youth, health, spirits, untouched 
credit, and what fortune may belong to them. How many 
of them will arrive at great wealth ?j Again, sir, let him 
suppose one hundred bankrupts to recommence their life ; 
advanced in years; with broken spirits; their credit taint- 
ed ; no capital to begin with, and every thing against them. 
How many of this second set are likely to arrive at the dan- 
gerous distinction of great wealth 1 And if there be any, 
how many of these docs he suppose will deprive themselves 



of the high enjoyment of paying their debts 1 — The chance 
is not worth computing. Every profession or occupation 
has prizes, but tbey are few in proportion to the blanks. 
In the occupation of a merchant, one would almost be led 
to doubt — such is the scene of individual ruin our commer- 
cial history presents — whether there are any prizes at all. 
We may be sure the high ones are very, very few indeed : 
And if he has no other objection to the bill than this, 
he ought at once to yield it as resting upon no real foun- 
dation. It is not worthy of being received into a rational 
calculation. 

But it is supposed that under the act of 1800, there were 
very few dividends. Indeed from what has been said, we 
should conclude there were none. Few or many, are al- 
ways comparative terms, and are absolutely unmeaning 
words unless we have something in our minds with which 
the comparison is to be made. Would there have been as 
many or more without the bankrupt law 1 Has the whole 
estate in every case been fairly divided? These are the 
true enquiries to be made, as to the point now in question, 
and they are answered by the lists more satisfactorily than 
I believe any one anticipated. It will be born in mind, that 
the early operation of the law would be principally in cases 
of previously existing and stale insolvency, where the es- 
tate had been already consumed for want of adequate in- 
ducement to surrender, or disposed of by assignments under 
insolvent laws or otherwise. The law was repealed too 
soon to give it a chance to exhibit its real usefulness. It 
must also be recollected, that before any dividend could be 
made among creditors in general, the United States were 
to be paid in full ; and as those who are liable to commis- 
sions of bankruptcy, are of the class of persons who are 
generally debtors for duties, this right of preference 
would exist in many of the cases. Creditors having specific 
securities must also be paid ; and neither of these would 
appear in the dividends. Now let us see what this calum- 



326 

mated law effected. The Pennsylvania list, though it gives 
us (wo hundred cases of bankruptcy, (the whole that oc- 
curred) furnishes the history of but thirty-seven cases. 
The rest have not been returned to the clerk's office, we 
have no account of them, and it does not appear how ma- 
ny or what dividends were declared — Of the thirty-seven 
cases there were ten in which there were dividends — the 
lowest was six per cent, they varied from that to fifty, and 
in one case the creditors were paid in full with interest ! — 
In New York, where there were in all one hundred and 
sixty-six commissions, we have an account of only seventy- 
one, that is, of the cases which occurred from the first of 
July, 1802, to the repeal of the law in December, 1803. 
Of the cases before the first of July, 1802, we are not in- 
formed. Of the seventy-one cases, there were twenty-two 
in which there were dividends, varying from three or four 
per cent to seventy per cent, and in one case the creditors 
were paid in full with interest ! From the other districts, 
there is no information. 

This is much better, I repeat, than any of us supposed, 
and better — far better, it may be safely asserted, than can 
be predicated of any insolvent law, or of any equal number 
of voluntary assignments. And when you consider the two 
circumstances before adverted to, which would have a ne- 
cessary effect upon the dividends, in the early cases, the 
law of 1800 is placed in a very fair and respectable light 
as it regards the interests of the creditor by this single 
glance at its operation. That the operation was beneficial, 
1 have no doubt — that it would have been more so, if it had 
been suffered to continue, is matter of very strong proba- 
bility. Such is the opinion of nearly all the commercial 
men in the union, as you see from their memorials ; and 
they have the best means of forming a correct judgment. 

But that law was certainly unpopular, say gentlemen — 
the sense of the country was against it ; and that is urged 
as an argument of great force. Why was that law odious, 



327 

and why was it so hastily repealed by such an immense 
majority 1 it may be that it was misunderstood, as it is even 
now. It may be that its mischievous tendencies were 
greatly exaggerated, as they have been in this debate. It 
may be, that the fancied right of the creditor, to pursue the 
future effects of an insolvent debtor, worthless as it is in 
any practical estimate, was swelled into the same theoreti- 
cal magnitude, as it has been in this House; and that some 
were persuaded to believe that to interfere with this right, 
to take this shadow from the creditor, even upon the most 
urgent motives, transcended the just power of legislation. 
It may be that it was unpopular then, as it is perhaps now, 
because it concerns chiefly but a small portion of our fellow 
citizens. A thousand circumstances, having no connexion 
with its real merits, may have influenced its fate, and it 
was not suffered to continue long enough in existence to 
establish its real character in the public estimation. 

To establish that a measure is unpopular, without proving 
that it deserves to be so, is altogether inconclusive. To 
establish even that it deserved to be unpopular twenty 
years ago, would by no means prove that it ought to be 
unpopular now. It might have been unfit then, and be 
very fit and proper at the present time. The change in 
human affairs which is continually going on, is precisely 
what gives occasion for continual legislation, and we are 
all of us obliged repeatedly to admit that we have been in 
error. Time conquers even the pride of opinion. Look 
at the history of your navy. Many a gallent battle was 
fought for it in this house by the venerable gentleman who 
sits before me, (Mr. Bassett) many a prejudice had he and 
others to contend against, for its support, before it had 
fought its own way to renown and favour. Now it is the 
favorite of the nation, universally popular, and it deserves 
to be so — every man is its friend and forward to be its 
champion. But for the opportunity offered by the war 
with the Barbary powers, but for its heroic achievements 



328 

in the war with England, the same cloud might still have 
rested upon the navy ; it might still have been unpopular, 
and we should have been without the great inheritance 
of fame secured by our naval heroes, which those wars 
have left us. 

The unpopularity of the bankrupt law, was owing chiefly 
if not wholly, to the circumstances in which it came into 
being. I never said, it was a party measure. I do not 
know whether it was or not, for I have not examined the 
journal, and if 1 had, I should not be able to decide. I 
know it ought not to be, and cannot now be justly so con- 
sidered. But it came into being in violent party times, 
was characterized as a measure of the party who then 
wielded the power of the government, and from whom the 
power soon after departed ; and it has been, and even at 
this moment, continues to be (as we are obliged to know 
and feel) associated in the feelings and opinions of many 
with the character of the stormy day when it first appear- 
ed. There were other circumstances attending the pas- 
sage of the law in the house, calculated to make it odious, 
and the spirit of warm party contest which then prevailed, 
suffered, nothing of this sort to fail of due effect, for want 
of being sufficiently pressed upon the public attention — 
Hence its unpopularity. 

But now let us see what it is that a bankrupt law prom- 
ises to effect. Exaggeration would be as dangerous on one 
side as on the other — it would be as foolish to overstate its 
advantages, as it is to overstate its defects. A bankrupt law 
does not promise to cure all the evils of society ; nor to 
relieve all the distress in the world ; nor to correct all the 
vices and follies of men. Nay, sir, its friends cannot soberly 
undertake that it will be altogether free from some pecu- 
liar evils of its own — for that is the case with every hu- 
man institution. Let us not deceive ourselves. Good and 
evil are found mixed in some proportion in whatever comes 
from the hand of man, as virtues and vices, wisdom and 



329 

folly, strength and weakness are found mixed in his charac- 
ter. The true question is this — is it better or is it worse 
than the present state of things? Is it our duty under the 
constitution? Let us take a fair and liberal and rational 
view. It is very possible, and even very easy, by present- 
ing only the objectionable parts of any human establish- 
ment, to give it a bad appearance. Perhaps to hasty and 
superficial observers, the evil is more apparent than the 
good. The law's delay, the expense of judicial establish- 
ments, occasional hardship and inconvenience from the 
rigorous demands of justice — these are often insisted upon. 
If we forget that judicial tribunals, are the great conserva- 
tors of private rights and public tranquillity — that their 
mere existence is a perpetual safeguard, of which we feel 
the benefit when they are at rest, as when they are in 
exercise — that the number of cases they may have to de- 
cide, is of little importance compared with the knowledge 
that they are always open to give redress, and thus are 
exercising a constant preventive and conservative influ- 
ence — if we forget that the authority of the judge is the 
authority of the law, that the independence of the judge is 
indispensable to enable him to perform his stern duty, and 
that the unvarying rigour of judgment, is the dispensation 
of justice according to law — I say, forgetting all these 
things, we may prove that courts of justice are almost 
an evil. 

The good which is done, is silent, unostentatious, gently 
but efficaciously pervading the community, and scarcely 
attracting observation, while each instance of what any 
man or set of men choose to think a grievance, is instantly 
the topic of complaint, and often of loud and importunate 
complaint. 

The same thing has happened to us, I mean, to con- 
gress. We have been freely censured, and we have 
censured ourselves ; perhaps the censure may in part be 
just ; but those who see in this body, nothing but a collec- 

42 



330 

tion of men, who waste their time in fruitless discussion, do 
not do justice to representative government or to the body 
itself. They do not know that even here, there are many 
who are silently and laboriously occupied in doing public 
work, which makes no noise, and engages no attention, 
however faithfully done. Let us endeavour to avoid de- 
serving such censure. 

The press, too, the great intellectual light of the world 
— what should we say of that, if we looked only at one 
side of the case? But I must not enter further into such 
inquiries. What is it, I repeat, that the friends of this bill 
promise ? That it will do some good. What do its ene- 
mies say? That it will not cure all evil. Granted. Will 
it be better or worse than the present state of things 1 I 
firmly believe things cannot be ivorse than they now are. 

The laws, as they stand at present, are sufficient for 
creditors in general, but not for the creditors of a failing 
debtor. They are limited in territorial operation, they are 
strongly tinctured with local feeling and views, are repug- 
nant and contradictory, and occasion conflicts, where one 
uniform system would produce harmony throughout the 
nation. They are inadequate, because they have no effi- 
cient power to compel, and can offer no adequate motive 
to induce an honest surrender. 

The laws are insufficient for failing or for fallen debtors. 
They are limited in territory, and they are limited in the 
relief they can give. They are wholly inefficacious against 
foreign creditors, while the foreign debtor finds a sure re- 
fuge from his creditors in the institutions of his own country, 
the benefit of which is extended to him here. The mer- 
chant of the United States, whether creditor or debtor, is 
in a worse condition than the merchant of any European 
nation. 

Where is the remedy ? Here, in a bankrupt law — and 
here only ; the states can do nothing, they have surren- 
dered all their power to you — Such a law will establish 



331 

peace between the citizens of different states, by extending 
a common rule to all who are likely to have relations with 
each other, in a case where a common rule is of the great- 
est importance. It will give relief to the unfortunate ; re- 
store them to society, and to usefulness, and teach them to 
look with affection and gratitude to the government of their 
country — It will place your merchants upon a footing of 
equality with foreigners, while even to foreigners it will do 
equal justice — It will give greater security to the revenue ; 
and it will have a tendency to perpetuate the blessings of 
this union, by extending the hand of constitutional authority 
with parental power, but with parental tenderness too, 
throughout every part of the nation. 

And at whose expense will all this good be done? I 
answer, unhesitatingly, at the expense of no one. Gentle- 
men have indeed told us, that creditors may be in distress as 
well as debtors, and the Speaker has indulged himself in 
sketching for us a picture of the misery that may be 
brought into the family of a creditor by the failure of a 
debtor. It may happen, that is certainly true. What 
then 1 You cannot relieve the creditor, nothing would be 
relief to him but the payment of his debt, and that you 
cannot pay — if you could, you would effectually relieve 
both debtor and creditor. The debtor you can relieve — 
but, as you cannot give relief to both, according to this 
•argument, you will give relief to neither. Because the 
misfortune of one (more or less as it may happen to be) is 
inevitable and incurable, therefore you will not administer 
the aid you can give to the extreme misery of the other. 
Because you are not certain that you can do all possible or 
conceivable good, you will do none at all. Is this wise, or 
humane, or just ? It is of the same class with another ob- 
jection that has been made, and amounts to this, that if we 
cannot relieve all debtors, of every description, we ought 
not to relieve any. 

Is the bill perfect, or is it even such that any one would 



332 

undertake to pronounce that no better can be devised? 
Assuredly we need not insist that it is. It has been fully 
and deliberately and carefully examined. If there be those 
among us who think some bankrupt law may be made, let 
them now join us to make it. Here is the basis. How else 
can we answer to our fellow citizens who are praying for 
such a law ? Let us not turn a deaf ear to their complaints, 
nor repel them with a cold suggestion, that we have not 
yet devised a perfect system. They will be satisfied with 
the bill on the table, much better at any rate than with 
such an answer. 

And the unfortunate who now stand in need of its relief, 
what shall we say to them? They are waiting in anxious 
and trembling expectation, their eyes turned towards you 
with an intensely earnest and imploring look. If that bill 
pass, imperfect as you may deem it to be, their suspense 
will terminate in tears of joy and gratitude. Many a glad 
heart will you make, now weighed down with sorrow. 

We will say to them, be patient, be patient — stay till we 
make a perfect system, till we devise something which the 
wit of man never yet devised. We, who are here entirely 
at our ease, enjoying in abundance the good things of the 
world — ice will counsel them to be patient. They will 
answer us, that they are suffering every moment, in daily 
want of the necessary comforts of life, without freedom to 
exert their industry, and without even the consolation of 
hope to cheer them on their way — " the flesh will rpjiver 
where the pincer tears." We will still coolly council them 
to be patient. But remember, that the sand in the glass 
is all this time rapidly running down — with some of them, 
it will soon be empty. Then, yes, then, without our aid, 
they will obtain a discharge, which we, nor no human 
power can prevent — an effectual discharge. The cold 
clod will not press more heavily on the debtor than on the 
creditor; the breath of heaven over the silent depository in 
which he lies will be as sweet, and the verdure be as quick 



333 

and fragrant. But till that moment arrives, the unfortu- 
nate man is doomed to feel the incumbent weight of the 
institutions of society. Let us think of the present gene- 
ration; of the men that live, and let us do something for 
their welfare and happiness. Let us, 1 repeat it, begin; 
for the sake of humanity and justice, let us begin. 

My strength is exhausted, and I must conclude. Yet 1 
scarcely know how to leave this part of the subject, when 
1 think what deep disappointment will follow the failure of 
the bill. 

Sir, I am as ambitious as people in general are, and I 
believe not more so. I feel unaffected pleasure in pos- 
sessing the confidence of those amongst whom I live, 
second only to the desire to deserve it. I will not deny 
that I am even fond of what is called popularity. But if 
the choice were presented, and it be not presumptuous to 
suppose it — I can say sincerely, there is no honour this 
country can confer, which 1 would not cheerfully forego, to 
be instrumental in giving the relief intended by this bill. 



SPEECH, 

ON RETRENCHMENT AND REFORM, DELIVERED IN THE 
HOUSE OF REPRESENTATIVES OF THE UNITED STATES, 
FEBRUARY 2ND, 1828. 

In the session of 1827-8, Mr. Chilton, of Kentucky, offered a series of 
resolutions on the subject of retrenchment, in the House of Represen- 
tatives, which, after a long and animated discussion, in the course of 
which this speech was delivered, with some modification were finally 
adopted. The whole subject of the proposed retrenchment of the expenses 
of the General Government, was ultimately referred to a select committee, 
composed of Messrs. Hamilton, Cambreleng, Rives, Ingham, Sergeant, and 
Everett. 

Mr. Sergeant said he should be sorry to have it known 
how much difficulty he had had, to overcome the repug- 
nance he felt to make any demand upon the time and at- 
tention of the House in this debate. If known to others, to 
the extent he had felt it himself, he was afraid it would be 
deemed an absolute weakness. He had been for some time, 
he said, out of the House. Great changes had taken place 
in its composition during that period. There were many 
members to whom he was a stranger. It seemed to him, 
also, that there was a change in the kind of demand they 
made on each other. Nothing appeared to him likely to 
engage the attention of the house — judging from what he 
had witnessed, unless it was piquant, highly seasoned, and 
pointed with individual and personal allusion. For this he 
was neither prepared nor qualified. He would take up as 
little time as possible, and, as far as he could, would avoid 
all topics that were likely to irritate or inflame. He would 
not here treat of the great question which agitates the people 



335 

of this nation, and upon which, as one of the people, he had 
a decided opinion. If touched at all, it would be incident- 
ally, as the natural consequence of remarks upon the sub- 
ject before the House, and of the facts he should have to 
state, and not as a principal point. 

It was one thing, he said, to offer a resolution like that 
under consideration, and another to vote upon it after it 
had been offered. The gentleman from Kentucky, he 
hoped, would consider him as speaking with entire respect 
for his motives and views. But, for himself, he must say, 
that he (Mr. S.) would not have offered the resolution : yet, 
being brought forward, he would not vote to lay it upon the 
table, nor to make any other disposition of it that would 
prevent the proposed inquiry from having a full discussion 
and a free course. The reasons for both these conclusions 
appeared to him to be perfectly satisfactory. 

He would not, he said, have proposed such a resolution, 
because he thought it must be unavailing. It was too ex- 
tensive for any practical purpose — it aimed at too much. 
It embraced the whole business of congress. It was our 
duty, he said, to take care that the public affairs were car- 
ried on in the most profitable manner for the people, and 
with the least public burthen. And this was not peculiarly 
the duty of congress at any one time, but at all times. 
It was the great end and object of our labours and our 
care, and ought to be of daily application by all of us. He 
thought it too much to devolve upon a single committee the 
whole of that which was the common concern and care of 
congress. 

He thought it unnecessary. Every inquiry proposed by 
this resolution, was already provided for, in accordance 
with the duty of the house, by the appointment of commit- 
tees, to give effect to the great guards of the constitution 
within their respective spheres. No money can be drawn 
from the treasury, but in pursuance of appropriations made 
by law. No officer can be appointed but under the autho- 



33G 

rity of the constitution or the laws. No salary can be af- 
fixed to an office, but by the same warrant. The Commit- 
tee of Ways and Means, a standing committee of the 
house, acts upon estimates furnished by every department 
of the government. When called upon to report appro- 
priations, they compare these estimates with existing laws 
and existing exigencies, and report only such as are justi- 
fied by law. 

When they report the appropriation bill, each item of 
it is subject to the revision of every member of this house. 
The annual appropriation bill brings every thing under re- 
view. The House itself is to examine in detail, and see that 
all is in conformity with the law. Have we not, too, com- 
mittees on the expenditure of each department 1 And a 
Committee on the Public Expenditures, to make a biennial 
examination, and see that the monies have been faithfully 
applied, according to the appropriations, and fully account- 
ed for ? He would not speak at present of the manner in 
which congress makes appropriations, nor how they are to 
be accounted for, particularly the contingent fund of this 
House, or of any of the departments. But he would say 
this — if there be any appointment not authorized by law, 
or any salary paid which the law does not authorise, let the 
specific abuses be pointed out and traced to its source, so 
that the offence and the offender may be known. He knew 
of none such. 

There was still another reason why he would not have 
brought forward such a resolution — he spoke sincerely, and 
after listening to this debate, as well as making some exa- 
mination for himself — there was no basis laid for the reso- 
lution, as there ought to be, by showing that there was 
abuse or extravagant expenditure, or such a state of things 
as rendered a general inquiry necessary, either for the pur- 
pose of immediate correction, or, as had been intimated, to 
procure materials for a more propitious moment. The 
structure of this government was not the work of a day. 



337 

He did not speak of the constitution, but of the fabric which 
had been constructed under the constitution for effecting 
its great purposes. It had not been built up at one time, 
but by successive and continued exertions of successive 
legislatures. It was not the work of one party, but of ail 
the parties which had existed in the United States. Begun 
by one, extended and enlarged by another — at one time 
perhaps carried too far, and then somewhat reduced, so as 
to adapt it to the state of the country, but in such reduc- 
tion always following the only course that can lead to any 
practical result — that of examining it item by item, and 
piece by piece. It was not now the possession of one set of 
men, or of any one party, but of the whole people of the 
United States, by whose immediate representatives it had 
thus been constructed. The legislature was created by, the 
Constitution — its pay and expenses are regulated by itself. 
The executive, too, was established by the constitution. 
The subordinate officers have been created by congress, 
and increased according to the growing wants of this ex- 
panding nation. Their pay and emoluments also have been 
fixed by congress. Even the number of clerks in each de- 
partment, and the pay of every clerk, is regulated and 
ascertained by law. It had, indeed, been remarked by the 
gentleman from Virginia, (.Mr. Randolph,) that the contin- 
gent expenses of this House had increased in a much greater 
ratio than its numbers — that in twenty years the numbers 
had only doubled, and the expenses were nearly quadrupled. 
This matter is entirely under the regulation of the House. 
If the expense be too great, let it be checked and control- 
led, by limiting, if it be possible, those branches of service 
which occasion the expense. But he did not believe the 
numerical argument precisely correct, or that in this case 
two and two would necessarily only make four. When it 
was considered that this confederation now embraced twen- 
ty-four states and three territories, the extent of the coun- 
try, and the space through which information was to be 

43 



338 

diffused — he thought it would be a great error to suppose 
that the expenses would increase only according to the in- 
crease of the number of representatives. lie rather thought, 
that, like the price of plate-glass or diamonds, they would 
increase in somewhat of a geometrical ratio. The greater 
part of the expense, it was obvious, was incurred for the 
purpose of giving information, and this was an object of too 
much importance to be sacriticed, for the purpose of saving 
expense. 

The establishments of the country have been formed in 
the same way — the army, the navy, the foreign intercourse. 
On what basis do they stand? Each on the footing upon 
which it has been deliberately placed by congress, after 
carefully considering what the public service required, and 
what they were respectively worth. There may have been 
error — nothing human is exempt from liability to error. 
Sometimes, however, it is imputed with unjust severity. 
But if there be error, let it be pointed out, examined, and 
corrected. There let the wisdom of congress apply the 
remedy at the point where the evil exists. 

There was an additional reason why, he would not have 
offered such a resolution, and especially at the present mo- 
ment. He would state it freely. At the same time, he thought 
it proper to say that he had no doubt the resolution was 
fairly and honestly meant, and for the direct purpose which 
the mover had himself stated. He (the mover) thought, 
and some of his constituents thought, that there were 
points in which reform was necessary, and that they might 
be embraced by a general inquiry. But his (Mr. S.) ob- 
jection to himself bringing forward such a resolution was 
this — a general allegation of extravagance and abuse — such 
as the resolution seems to imply, cannot be accurately and 
satisfactorily met. It is impossible, whatever may be the 
fact, to give it a demonstrative refutation, because it pre- 
sents no specific subject for discussion. It may do harm ; 
it is calculated to spread abroad an opinion that abuse and 



339 

extravagance exist, and arc allowed, here, at the seat of 
government, under the very eye of congress — It is calcu- 
lated to weaken the attachment of the people to the go- 
vernment — not to the administration — he did not mean that 
— not to this set of men in power, or to that set of men — 
but to the government itself — and to give point to an 
inquiry he had seen in a newspaper with great regret — of 
what advantage or use is this government to the people ? 
This is especially the case where the allegation includes 
ourselves. 

There was one part of the resolution to which he had 
the strongest repugnance as a subject of discussion. He 
never had discussed it, and he did not think he ever would. 
He referred to the inquiry about our own pay. The amount 
of the pay of members of congress has never been altered 
but once since the adoption of the constitution, (Mr. Ran- 
dolph — twice). Twice altered the mode of compensation, 
the amount but once. The per diem now allowed was in- 
tended to be about equal in substance (he had made no 
exact calculation) to the per annum allowed by the com- 
pensation law. Two dollars a day — and no more — had 
been added, to the pa}r fixed at the organization of the 
government. This could not be deemed an extravagant or 
exorbitant addition. He looked back, he said, to the 
period of that law (compensation law) with great regret. 
Not that he thought the per annum compensation injurious 
in principle or wrong in amount — but he regretted ex- 
tremely that the public mind should have been agitated as 
it was, by such a question. He would rather have foregone 
any advantage to himself. No: the advantage was not 
worth estimating — he would rather have foregone the 
whole pay for the time, than have been instrumental in 
furnishing such a cause for regret. 

Dismissing this subject of the pay of the members 
(always accompanied with unpleasant feelings,) he said he 
was, on general grounds, prepared to believe, from some 



340 

examination, (hat the suggestion of extravagance or .abuse, 
and the consequent necessity of reform, as applied to this 
House, to the executive departments, or to any branch of the 
service, was not supported. He did not mean to say that 
there ivas no useless office. But there was no proof, nor 
no reason to believe, that there is any such office. Nor 
would he say that there was no useless expenditure. But 
he would say, that he knew of none, and, in this debate, 
none had been designated. As all the offices arc created 
by the constitution, or by act of congress, as even the 
clerks were numbered and their salaries fixed, and both 
were in the power of congress, he could not suppose, until 
some ground for the belief had previously been laid, that 
there was in these particulars extravagance or abuse. 

On the contrary, he said, there was the strongest general 
evidence of a wise and economical administration of the 
affairs of this country. He did not mean the present 
administration merely — he meant the government in gene- 
ral, giving to the present administration their just portion 
of credit. As far as they were concerned, they were enti- 
tled to the praise of fairly contributing to give effect to a 
wise system of economy. Much of the merit belonged to 
congress. 

Matters of revenue and expenditure, necessarily sounded 
in figures. He would not contradict those who seemed to 
think that even figures might deceive ; but he would say 
that he did not know how such a subject could be under- 
stood without resorting to them. It was a matter of calcu- 
lation after all, and nothing but calculation, however 
tedious the process, would lead to sure results. He did not 
intend to restrict himself in his inquiry to the term of the 
present administration. Beginning with the peace, when 
the nation was liberated from the extraordinary demands of 
war, he would embrace the whole period of thelast adminis- 
tration, (which one gentleman had said he thought was waste- 
ful and prodigal,) and as much of the time of the present 



341 

administration as had already expired, in order to show 
that there had been, and still continued to be, a wise and 
economical management of the affairs of the country. 
What had been accomplished during that period I 

From the treasury report of 181G, it appears that the 
public debt was then estimated (30th September, 1815) 
at *1 10,035,558 40 

" Subject," the report adds, " to consider- 
able changes and additions," estimat- 
ed at 7,000,000 00 



Making a total of f 126,635,558 46 

There were, besides, large floating claims, growing out 
of the war, for which congress has been obliged from time 
to time to make provision. The public debt, therefore, in 
January, 1810, was, in round numbers, one hundred and 
twenty-six millions and a half of dollars. What is it now? 
Nominally, sixty-seven millions. But of this aggregate, 
seven miilons were the subscription to the bank of the United 
States, for which wc have the same amount in stock, of 
equal, or of greater value. Deduct that sum, and the 
total debt is but 00 millions. So that during the period of 
about twelve years, beginning immediately after the war, 
there has been an extinguishment of debt to the amount of 
rather more than sixty-six millions. But this is not all. 
There has been created, during the same time, a debt of 
five millions of dollars, to purchase Florida, that is, to pay 
the claims of our own citizens, stipulated by the treaty with 
Spain to be paid as the price of that purchase. This sum 
being added, as it ought to be, there is an aggregate of 
seventy-one millions, or nearly six millions of dollars a year, 
during the whole of that period, besides paying the interest 
of the debt, the expenses of government, and making liberal 
provisions for the public service. This is something. But 
much more had been done. For what he was about to 
Hay, lie referred to the report of the committee of ways and 



342 

means in the year 1816. At the head of that committee 
was a gentleman, who could not be remembered without 
a feeling of deep regret at the public loss sustained by his 
early death. He possessed, in an uncommon degree, the 
confidence of this House; and he well deserved it. With so 
much knowledge, and with powers which enabled him to 
delight and to instruct the House, there was united so much 
gentleness and kindness, and such real unaffected modesty, 
that you were already prepared to be subdued before he 
exerted his commanding power of argument. He spake, he 
said, of the public loss — As to the individual himself (the 
late William Lowndes, of South Carolina,) he had lived long 
enough to acquire the best possible reputation — a reputa- 
tion earned by a well-spent life. But to return to the im- 
mediate subject. It appeared from the report, that at the 
period referred to, (1810,) there was a direct tax of more 
than five millions and an half— there were internal taxes, 
consisting of licenses to distillers, tax on carriages, licenses 
to retailers, auction duties, tax on furniture, on manufac- 
tures, excise on distilled spirits, and increased postage, to 
the amount of seven millions, making an aggregate of more 
than twelve millions and a half of dollars. From all this 
weight of burthen, the people of this country had been re- 
lieved. Above twelve millions and an half of revenue had 
been surrendered ; yet the interest of the public debt, 
amounting, at the beginning of the period, to more than six 
millions of dollars per annum, had been duly paid — the 
claims growing out of the war, of very large amount, had 
been paid — the army establishment supported — the navy 
maintained and augmented — a system of fortifications esta- 
blished and prosecuted, commensurate with the wants of 
the country — the claims under the treaty with Spain had 
been satisfied — the regular operations of the government 
carried on — and beside occasional appropriations by con- 
gress, a permanent provision (a heavy draught upon the 
treasury, but well applied) had been made for adding to 



343 

the comfort of the declining years of the veterans of the 
Revolution. Something not inconsiderable, too, has been 
done for internal improvement. And, during the same 
period, as he had already stated, seventy millions had been 
paid oiFof the principal of the public debt. Of this amount, 
he thought it proper to add, more than sixteen millions, 
(principally of public debt) had been paid during the pre- 
sent administration. 

A government which has effected this, he said, would 
seem to be entitled to the praise of being wise and econo- 
mical, at least until the contrary appeared by some proof 
of extravagance. And what is our position now 1 There 
is no internal tax — no direct burthen; the expenses of our 
government are entirely defrayed by the indirect taxation 
of the customs. We are in the full enjoyment of civil, re- 
ligious and political liberty, to an extent without example ; 
and last, not least, there is as much abstinence on the part 
of the government, in the exercise of its powers over indi- 
viduals, as can possibly be observed : much greater than 
any known government ever did, or now does observe. We 
enjoy under it ample protection, and yet we never feel its 
pressure. We know of its existence only by the benefits 
it confers. 

Out of the income and revenue of the country, ten mil- 
lions a year are irrevocably destined as a sinking fund to 
extinguish the public debt. The process is rapidly going 
on. He would not repeat the accurate and satisfactory 
statement which had been made by his colleague, (Mr. 
Stewart). The annual appropriation is more than sufficient 
to pay off* the debt at the periods when by the terms of the 
several loans it is redeemable. The whole may be paid off 
in the year 1835, and a large surplus accumulated in the 
treasury. After that period, the present revenue will ex- 
ceed, by at least ten millions of dollars, the wants of the 
government, and may be accordingly reduced. Such is our 
condition, and such our prospects. 



344 

But there is other proof more precise, and in some re- 
spects more satisfactory, upon this point of a wise economy. 
What are the total expenditures of the government, the 
public debt included? Let us take the year 1820. It 
affords a better basis than the year just ended, because it 
is all matter of exact knowledge, and no part estimated. 
The whole expenditure is about twenty-four millions of 
dollars. The population of the United States at the pre- 
sent moment is not exactly known. But, upon the lowest 
estimate that can be reasonably formed of it, this expendi- 
ture is less than two dollars for each individual composing 
it. How then can it be supposed, as it seemed to be by 
the gentleman from Virginia, (Mr. Floyd) that the compa- 
rison with other countries would be disadvantageous to us? 
There is no comparison in the case. Take the govern- 
ment of England, for example. The taxation there, ac- 
cording to the latest statement I have seen, taking an 
average of five years, ending in 1823, is no less than fifty- 
three millions sterling, and the parochial taxes are stated 
at seven millions more, making a total of sixty millions. 
This is equal to three pounds sterling a head of the whole 
population, or, at the present rate of exchange, fifteen dol- 
lars a head. But he understood the member from Virgi- 
nia (Mr. Floyd) to say, that we must add the expense of 
our state governments and local charges, and, these being 
added, our government would appear to be an expensive 
one. In the state which he (Mr. Sergeant) had the hon- 
our in part to represent, there were no taxes for the support 
of government. The only state taxes existing, were seme 
which had recently been imposed, for the purpose of car- 
rying on a great system of beneficial improvement, which 
could not, with any propriety, enter into the calculation. 
The proper expenses of the state government did not, ac- 
cording to his recollection — he spoke merely from recollec- 
tion — exceed ten or fifteen cents for each of the people. 
As to local charges, of various kinds, it would be sufficient 



345 

to say, that if they were to he added on one side, they must 
also, for the purpose of comparison, be added on the other. 
They existed every where. If we pay in our cities and 
towns for paving, lighting, cleansing, are they exempt from 
similar charges in England? If we pay for water, do they 
not pay too 1 These charges are, in fact, only equivalents 
for comforts we obtain, and which are better and more 
cheaply obtained by common contribution. No one is ex- 
empt from them. He who lives in the country must either 
forego these things, (some of them he cannot dispense with) 
or procure them at his own expense. He must sink his 
own well to get water, and it will cost him more. He must 
go unlighted in the dark, or he must carry his own light. 
He must make his own path. If he come to a place where 
he cannot put down his foot, he must himself lay down a 
log or a stone to step upon. He repeated, therefore, that 
those charges — local ones — were only equivalents for com- 
forts, which could not be so cheapty had in any other way. 
They were not part of the present calculation. He then 
said, this was far the cheapest; government — it made less 
exaction of any sort from the citizen. This was a fair 
ground for presuming that it was not wasteful or extrav- 
agant. 

Now, sir, he said, let us see how this annual expenditure 
is distributed. That will be coming nearer to the very 
point in question, and will afford satisfactory information. 
The total expenditure, rejecting fractions, was twenty-four 
millions. Of this amount, nearly one half, that is, eleven 
millions, were applied to the payment of the principal and 
interest of the public debt.j For the military establishment, 
including fortifications and military pensions, six millions 
two hundred thousand dollars. For the navy, four millions 
two hundred thousand dollars. All these are expenditures 
necessary for carrying into effect laws made upon delibe- 
rate consideration, and they will continue to be necessary 
until congress, upon the same deliberation, shall think 

44 



346 

proper to reduce these establishments, or (which will 
speedily arrive,) the public debt shall be paid off. When 
that day comes, the necessary expenditure, and of course 
the requisite revenue, will be reduced nearly one half. 
For the civil, diplomatic, and miscellaneous expenditure of 
the government, it appears, therefore, that there is left 
onlv about two millions six hundred thousand dollars, or a 
little more than one tenth part of the whole expenditure. 

This expenditure, of a little more than two millions and 
a half of dollars, or rather more than one tenth of the 
whole expenditure, provides for the following objects : The 
whole of the legislature of this Union of twenty four states, 
contingent expenses included : The whole of the executive, 
including the State, Treasury, War and Navy Depart- 
ments : the expenses of the Post office Department, cover- 
ing a greater extent of territory, and diffusing a greater 
amount of accommodation than any other known estab- 
lishment of the kind : the surveying of the public lands : 
the mint establishment of the United States : the govern- 
ment of three territories : the whole judiciary of the 
United States; the light-house establishment : the whole 
of the expenses of our foreign intercourse : and some 
miscellaneous items, which not belonging properly to any 
other head, are placed under this. 

Is it not rather amazing, that the government, extending 
over twenty-four states and three territories, embracing so 
large a space, and so great a population, and providing 
adequately for all, should be carried on at so small an ex- 
expense ? In other parts of the world, it would scarcely be 
credited. — It does the highest honor to the government, 
congress included. It seems to me to show most satisfacto- 
rily, that the government, instituted by the people and for 
the people, has up to this moment been true to its appropri- 
ate and characteristic principle, of promoting the public 
welfare — and that instead of being surrounded here, as 
some have appeared to imagine, by extravagance and 



347 

abuse, we are still in the pure days of the republic. If, 
hereafter, abuses should occur, if corruption should grow 
up, and our institutions be perverted or overthrown, the 
patriot, for even then there will be patriots, will look back 
to our time, with mixed admiration and regret, as a portion 
of the happy and honest period of our history. 

He said, he had been very much struck with a remark 
made by a gentleman whom he was obliged to designate as 
one of the opposition, that this was not a favourable time 
for retrenchment — If retrenchment were necessary, he 
(Mr. $.) thought there could be no more favourable time — 
The people could never have higher security than they 
now have. For we are sure that this administration will 
be closely watched, and that no error, however slight, will 
be left undetected and unexposed. There is the most un- 
ceasing vigilance. There has not been, there will not be, 
a single particular that will escape the watchful attention 
of congress. He did not mean to say that it ever slumber- 
ed. But, assuredly, it can never be more wide awake and 
active than when stimulated as it now is by the feelings 
which are admitted to exist. There is all the ordinary 
vigilance and something more. How then can abuse, al- 
wa} r s obnoxious to the censure of congress, hope at this 
time particularly, to escape examination and exposure? 
How can it be believed, that it has so escaped? 

These were some of the reasons why he would not have 
felt himself bound to offer such a resolution. They were 
not reasons for opposing it when offered by another, but 
rather for giving it the fullest and freest course. If in any 
quarter of the country there is an impression of extrava- 
gance or abuse, let it be removed. If, said he, any mem- 
ber of this house desires to institute a general inquiry, 
however unpromising I may think it on account of its aim- 
ing at too much, I for one will not withhold from him the 
opportunity, though the mere inquiry seems to imply a cen- 
sure upon the government, or upon some branch of it. Such 



348 

an investigation is a very weighty one. It requires a care- 
ful examination of the whole structure of the government, 
and of all its parts. But 1 cannot agree with the gentle- 
man from Virginia, and the gentleman from South Carolina, 
that it requires the cordial co-operation of the executive, 
nor any co-operation at all. The gentleman from South 
Carolina who last addressed the House (Mr. Hamilton,) 
says the keys of the treasury are in the hands of the ex- 
ecutive, and he speaks of the executive as occupying a 
fortress inaccessible to us without his leave. Sir, the keys 
of the treasury are in the hands of this house, lodged there 
by the constitution. The keys of every department are in 
the hands of this house. Not an avenue, part or place in 
the government, that is not open to us, when wc command 
it to be open. We have an unlimited power to enter, 
examine and enquire. We are not obliged to trust what 
any one may tell us, nor adopt the representation of any 
head of a department. I acknowledge — and if the admin- 
istration were to be changed to-morrow, I would make the 
same acknowledgment — I do acknowledge that one conces- 
sion ought, in my opinion, to be made — a very humble 
concession, indeed, to a co-ordinate branch of the govern- 
ment, and to the elevated character of the men who fill 
those elevated places — the concession that we may rely 
upon the truth of what they tell us in matters of fact. As 
to opinion, we can form it for ourselves. Less than this 
cannot be supposed or conceded. 

There were other reasons, he said, why he had not voted 
to lay the resolution upon the table, and would not do so. 
Such a vote might be interpreted into evidence of a dispo- 
sition to prevent inquiry. Especially, he could not consent 
to such a vote, when the motion was accompanied with a 
remark, often since repeated, as the ground of it, that this 
was not the time for inquiry, retrenchment or reform. What 
does this argument amount to? What does it mean? It 
means, 1 suppose, as others have said, that this is not a 



349 

propitious moment ; that we cannot expect a " cordial co- 
operation" on the part of the executive. It is pointed, 
therefore, directly at the present executive ; it is a charge 
of a serious nature, calculated to prejudice the executive 
in the estimation of the people, and to bear upon the pen- 
ding election of President, to the injury of one of the candi- 
dates. He could not give it his sanction, because he knew 
nothing to warrant it. If reform or retrenchment were 
proper or necessary, he believed the present executive 
would give us his aid as cheerfully and as effectually as 
any we could have. 

The gentleman from South Carolina, (Mr. Hamilton,) 
has very frankly given another version to the suggestion 
that this is not the time. He would be willing now to col- 
lect materials for reform and retrenchment, but he would 
not be willing now to make reform and retrenchment. And 
why ? Because he did not wish to give the merit of such a 
work to the present administration, but to reserve it for a 
future administration. This is candid, undoubtedly, but it 
is unsound doctrine. The gentleman from South Carolina 
will be obliged, upon reflection, to abandon it. Is it con- 
sistent with the duty we owe to the people, to postpone the 
reform of abuses, if we really believe it necessary, in order 
that we may strip one administration of the merit, and 
bestow the grace of it upon another ? Is it not our first 
duty to do what is required for promoting the public wel- 
fare, and to do it at the time when it is required ? Can we 
justify ourselves in delaying it for any consideration what- 
ever, much less for such an one as that which had been 
slated? He thought not. It would be entirely at variance 
with every notion he had of the proper functions of con- 
gress. He would therefore say, that so far as the motion 
to lay upon the table was calculated to do injury to the 
present administration, he was opposed to it upon that 
ground. And with this declaration, he was sure the gen- 
tleman from South Carolina was too candid to find any 



350 

fault. So far as such a motion was calculated to prevent 
or to retard inquiry or reform, or had the appearance of 
being so calculated, he was opposed to it, because he would 
not willingly place any obstruction in the way. 

He said he was not going to enter into the contest of 
crimination and recrimination which had been carried on 
here. He felt himself entirely unfit for it. Some topics, 
however, had been introduced, having something of a spe- 
cific shape, upon which he would trouble the House with a 
few observations. The diplomatic intercourse of the coun- 
try has been charged with extravagance and mismanage- 
ment; and with what may perhaps be termed want of 
taste in its style. He understood a gentleman from Virgi- 
nia (Mr. Floyd) to contend, that the whole character of our 
foreign intercourse ought to be changed. If the allowance 
to our ministers was too low, he (Mr. Floyd) would agree 
to raise it ; but they should come home when the business 
was done. There should be no permanent missions in other 
countries — no ministers remaining abroad. This, said Mr. 
S., would be an entire change of the system acted upon by 
the government ever since its foundation. It ought not to 
be adopted without being thoroughly considered. He 
would appeal, then, to the House, whether, in the present 
state of the world, any civilized nation was at liberty to 
withhold or refuse the ordinary and established duties 
of courtesy and hospitality ? If she claim to be of the 
family of civilized nations, and wish to maintain the rela- 
tions of peace and commerce, is it in her power to withdraw 
herself from associating with them upon the terms and in 
the manner which the common convenience has settled 1 
An individual may shut himself up in his house — may re- 
fuse to visit — may determine that he will neither give nor 
receive invitations : if he do, it will not only be at the ex- 
pense of much innocent gratification to himself, and at the 
expense, too, of many great advantages to himself, but it 
will be a positive injury and wrong to society ; for, as far 



351 

as his example goes, it must, if adopted, cut up society by 
the roots. It is the same with nations. No one can shut 
herself up. It has been the policy of this nation, from the 
beginning, to perform her part in this system of mutual 
and friendly intercourse. Aye, sir, said he, and let it be 
remembered, that one of the first and highest gratifications 
this country ever received, was the reception of her minis- 
ter at the court of France ; an act which publicly owned 
her as one of the family of independent nations, and in- 
creased her moral power both at home and abroad. If the 
system is to be changed, congress must do it. As long as it 
continues, the duty of the executive is to give it effect ; 
and no blame can attach to the administration for execut- 
ing the provisions of the constitution and the laws. 

It was true, he said, that within a few years past our 
diplomatic intercourse had been extended, and its expenses 
increased. The family of nations had been enlarged by the 
interesting addition of the new states of this hemisphere. It 
was, in every view, particularly interesting to us. They 
were new, near, and valuable neighbours, with whom we 
must have relations, and with whom there could be no 
doubt it was desirable that there should be the relations of 
peace, of friendship, and of mutual good understanding, 
Upon this point, the people of the United States were in 
advance of congress — he did not speak hastily — the public 
sentiment was in advance of congress, and congress was in 
advance of the executive. The missions were not insti- 
tuted until this House, by a resolution, passed with almost 
unexampled unanimity — (but one member voted against it, 
a gentleman from Virginia, not now a member) — until this 
House, stimulating the executive to open the intercourse, 
pledged itself to support him in the measure, and offered a 
liberal provision for the expense. There has been no ex- 
pression since of a wish to abandon or to limit that inter- 
course. Whatever may be the expense of those missions 
to the new states, all who read the newspapers, and know 



352 

any thing of the nature of our commercial intercourse with 
them — all who know how they are solicited, courted, and 
caressed by the European powers, and the struggle that is 
carried on for their favour — to say nothing of other and 
mere general considerations, will see the importance of 
cultivating good feelings and maintaining a good corres- 
pondence with them ; and that we cannot neglect these 
things, without risking the loss of valuable advantages. 
His own clear opinion was, that we ought to omit no fair 
exertions to preserve them, and that the missions ought to 
be maintained. He thought them of the greatest conse- 
quence. 

Remarks had been made upon the style of our foreign 
ministers, their dress particularly. Why, said the gentle- 
man from Virginia, (Mr. Floyd,) not let them appear with 
the simplicity of Franklin and Livingston? The House 
would excuse a word in reply. He (said Mr. S.) knew 
nothing of the simplicity of Mr. Livingston. That gentle- 
man was not near to the time of Franklin. He was ap- 
pointed to France soon after Mr. Jefferson became Presi- 
dent, he believed in 1801. But this he did know, from the 
best information, that he was a gentleman of large fortune, 
and liberal disposition, accustomed every where to a 
liberal way of life, and that the liberality of his style of 
living in France was such as most materially, as he had 
understood, to encroach upon and reduce his private fortune. 
In what dress he appeared at court he could not say ; but 
he took it for granted he accommodated himself to the 
fashion of the court. As to Franklin, he said, consider the 
circumstances under which he appeared in France. The 
representative of a young republic, just coming into exis- 
tence, and in its very cradle exhibiting Herculean strength 
by maintaining single-handed a contest for its independence 
with one of the strongest nations that existed; attracting 
the earnest attention of the whole civilized world, and es- 
pecially engaging the attention and the good wishes of 



353 

France, because the contest was with her habitual enemy, 
and promised to diminish his power. When a nation so 
circumstanced shall have a Franklin for her envoy, I do 
not believe it will be very material to inquire what dress 
lie wears. To that state we shall never return ; and, I 
may be allowed to add, we have not Franklins to send. 
He carried with him the fruits of more than seventy years, 
devoted, with the aid of extraordinary natural genius, and 
especially of most uncommon sagacity, to the acquisition of 
knowledge, and with the great reputation he had justly 
acquired, by diffusing the treasures of his wisdom and ob- 
servation. He was known for his examination before the 
House of Commons ; he was known for the tierce and viru- 
lent obloquy that had been heaped upon him, (for, he, too, 
was visited with obloquy) by Weder burne, afterwards Lord 
Loughborough, before the privy council ; he was known as 
a man of letters, as a scientific philosopher, and, what is 
more, as a practical philosopher too ; and he was known as 
a statesman and a patriot. His fame had gone before him 
— it shed a lustre upon his country, wherever there were 
men who could appreciate his merit, and that lustre is still 
undiminished. I do not exactly know what coat he wore. 
It is somewhere recorded, that in French society, his 
straight-combed venerable locks and simple dress were 
admired by the ladies, who then gave the tone to society. 
It was something strange, out of the common way ; and if 
it had been even uncouth, it might have attracted still more 
attention. How he appeared at court* as to dress I do not 
remember to have seen particularly stated. He was a long 
time in France before he was received. His public recep- 
tion was not till about the time of the treaty. This livery, 
however, as it has been reproachfully called, I cannot say 
1 have worn it, but I know what it is, and have heard some- 

* It is believed, upon good authority, that he appeared in a full court dress. 
The character of this eminent man would lead us to believe, that ho would in 
this respect, conform to the usages of the court. 

45 



354 

thing of its history. Our ministers abroad are very poorly 
paid. They cannot bear the expense of court dresses. If 
borne by the treasury, as a contingent expense, it is so much 
money thrown away. If borne by ministers, it makes an 
unreasonable charge upon their allowance. The salaries 
of our ministers abroad were higher, by above twenty-six 
hundred dollars, in the time of Franklin, than they are now, 
though the expenses of living were probably not more than 
half of what they are now. The present rate of allowance 
was fixed as long ago as the year 1784, by an act of the old 
congress. How then does the matter stand ] The House 
will recollect, from a statement made by the gentleman 
from Massachusetts, that our distinguished fellow citizen, 
the late president of the United States, (Mr. Monroe,) was 
encased in four missions in the source of little more than a 
year. Claims growing out of that employment have lately 
been allowed by congress. — He was led in rapid succession 
to different courts, probably obliged at each to conform to 
the mode established by etiquette. The expense would be 
for a single occasion. There are instances of charges, 
allowed by the government for dresses of ministers for par- 
ticular occasions. When Mr. Madison was president, and 
Mr. Monroe secretary of state, the present plan was adopt- 
ed as a relief. It is not obligatory upon the minister. He 
may dispense with it, if he think fit. It is no expense to 
the treasury, for the minister must pay for it himself. But 
he has the sanction of his country to wear it. — As long as 
it lasts, he need make no change. — Wherever he goes, he 
is in the dress of his own country, and stands upon his own 
ground, instead of being obliged to conform to foreign fash- 
ions. It has been spoken of as costing §TibO. That is too 
high. It costs something more than half that sum. But 
the minister pays it, not the treasury. Why call it re- 
proachfully, a livery? It is no more a livery than the coat 
of an officer of the army or the navy — it is probably not 
finer than the coat of a general officer. If it be a livery, 



355 

is there any disgrace in wearing it 1 We are all servants 
of the people, they are our masters ; the livery worn by 
their servants, is one which no man need be ashamed to 
wear. It is the livery of the people of the United States. 
This is understood to be the history of (he coat. If any one 
within the sound of my voice, should hereafter be appoint- 
ed a minister — my advice may be of little value — but I 
recommend him to put on the livery of his country. 

It is not questioned that it is the duty of the executive 
to conform to existing laws and policy. It is admitted that 
if the appointment be directed by law, there is no choice ; 
but he understood his colleague (Mr. Ingham,) to assert the 
application of a rule of judgment, which he was sure, upon 
deliberate consideration, he (Mr. I.) would see to be unjust, 
infinitely mischievous and dangerous. He was understood 
to say, that even where the act was lawful, he would 
inquire into the intention, the quo animo. He would appeal 
to his colleague, if this mode of judging was not the root of 
incalculable mischief and injustice. A man performs his 
duty, walks cautiously, is, if you please a religious man — 
some one chooses to inquire into the quo animo, and pro- 
nounces him a hypocrite. 

[Mr. Ingham explained. He did not say that he would 
apply that rule. He had said it would be applied else- 
where.] 

Mr. Sergeant said he accepted the explanation of his 
colleague, whom he should be sorry to misunderstand. No 
doubt he meant that it was not a rule which, as a member 
of the House, he would apply here. But he submitted to 
him that it was unsafe and uncharitable every where. He 
had the sanction of the House for saying it was unjust. 
The lirst rule we are obliged to adopt is, that no member 
shall be at liberty to impeach another member's intention. 
Upon what grounds the people of this country would decide 
the question now pending before them, he would not now 
inquire — he would not say a single word. As one of the 



356 

people, he had his rights, which at proper times and on 
proper occasions he would freely exercise. 

Some particular instances have been more or less alluded 
to in the debate. Among the rest, was the mission to 
England. It was said the minister had returned re infecta, 
and of course it must have been meant that there was all 
the expense of the mission without any corresponding 
benefit. What was the fact 1 The hand of sickness had 
fallen upon the minister, as it may upon any of us — it may 
now be upon some of us — and incapacitated himtoperform 
the duty. Can this be matter of charge against any body 1 

[Mr. Randolph explained. He expressed his deep regret 
for that gentleman, (Mr. King,) and declared that the 
words did not import any reflection upon him, nor attach 
any blame to him.] 

Mr. Sergeant proceeded. They were not so understood. 
He was sure that the gentleman from Virginia did not mean 
to say one unkind or reproachful word of Mr. King. The 
allusion to, the unproductiveness of the mission had come 
from another quarter, and he (Mr. S.) had adopted the 
phrase used by the gentleman from Virginia, (Mr. Ran- 
dolph.) It was his (Mr. S/s) object to show that no one 
was to blame for the issue, neither he who undertook the 
mission, nor those who appointed him. Of that eminent 
man, all know something, but few of us, probably, know the 
full extent and measure of his services to his country. He 
confessed that he had himself been ignorant till within a 
few days past, when he was led into an inquiry which 
discovered to him a length and magnitude of public service 
beyond what he had before known or supposed. With 
regard to his age, it was sufficient to say, that he had just 
left the Senate, when he was appointed to England, and 
that body afterwards approved the nomination. He was 
not so old as Franklin was when he left this country for 
France, and Franklin served his country faithfully and ably 
as their minister for eight years and a half. [Mr. Randolph 



357 

was here understood to say — " there could not have been 
a better choice."] 

Of that mission, he said, which had also been alluded to, 
in which he had the honour to have a part, the mission to 
Panama, he should always have difficulty in speaking, for 
very obvious reasons. At this time, it was impossible he 
should enter into the subject, because the mission was still 
pending, in the hands of our minister at Mexico. He would 
say, however, in reply to the allegations which had been 
made against it, that the mission had the clear sanction of 
all the branches of the government. What has since occur- 
red, could neither make it right or wrong. It stood upon the 
same footing as at first. If it was right then, it cannot be 
wrong now; but he would say, and he said it with the 
utmost sincerity, it was but the humble opinion of an indi- 
vidual ; he would say, from all that he had seen and all 
that he had heard, that if the congress should assemble at 
Tacubaya or elsewhere, it was of the greatest importance 
to the interest of the United States that we should be re- 
presented in it. He was not about to debate the matter. 
He merely gave this as his own single, humble, perhaps 
valueless opinion. 

He would take up, he said, but little more of the time of 
the House, to notice one or two other topics which had been 
introduced into the discussion. A great deal had been said 
about the patronage of the government, and its employment 
to strengthen the administration in the possession of power. 
This had been particularly and forcibly insisted upon by 
the gentleman from South Carolina. Upon this point, he 
said, he (Mr. S.) might probably differ from many, and per- 
haps be thought singular. But so far from thinking pa- 
tronage a source of power, he regarded it as a destroying 
canker, let it be employed as it might. He was strongly 
i nclined to believe, that the execu tive would be stronger with- 
out it. He would not appeal, in support of this opinion, 
to a statesman of former times, he did not like the authority 



358 

— that statesman had employed a more direct mode — but 
he would appeal to the nature of man. Let gentlemen 
reflect, and then, he said, let them tell me which are the 
strongest passions and feelings of our nature, those which 
seek our own gratification, or those which terminate in 
doing good or in doing justice to others 1 Gratitude, for 
example, or self-love, revenge, dislike. The one is mode- 
rate, and dull — the other active, violent, and enduring. 
He who has the power to appoint, must also disappoint. 
For one that he can appoint he must disappoint ten ; and 
all who are disappointed are very apt to be offended, and 
think themselves injured. The one who is selected may 
feel a cool and temperate regard for the executive. Even 
this is not always the case ; in many instances, pride sug- 
gests to us that we owe nothing but to our own proper 
merits. The disappointed applicants, on the contrary, each 
of whom supposes himself to be at least as deserving as the 
successful candidate, deeply feels the wrong they think has 
been done them, and they yield themselves to the resent- 
ment it naturally excites. No, said he, give me no patron- 
age, where there are so many to solicit, who think they 
have equal claims. But this is not all. The present 
debate proves it. There is no part of the conduct of a 
public man so liable to misconstruction ; nay, so inevitably 
exposed to misconstruction, especially in times of party 
excitement, as the exercise of this power, called patronage. 
He must exercise it, because the constitution and laws 
require him to do so ; he has no choice but to make the 
needful appointments ; and yet, the moment he has made 
them, by the application of the rule of quo animo, they are 
imputed to unworthy motives. If he appoint a friend, it is 
to secure him. If he appoints an enemy, it is to buy him. 
Every way it is corrupt. 

He cannot possibly escape censure, unless, perchance he 
could find some comfortable neutral, sitting quietly by his 
fireside, ignorant of the political storm that is raging around 



359 

him, who has never heard, or, if he has heard, has forgotten, 
that there are two candidates for the presidency, and who 
is so entirely destitute of all public feeling, and knowledge, 
as to be on that account unfit for office. If he appoint friend 
or foe, it is sure to be wrong. How such patronage could 
be deemed a source of power, especially of undue power, 
endangering the fair working of the constitution, he could 
not understand. The power of appointment must be de- 
posited somewhere. If any one can show that, as now 
deposited, it is likely to do injury, and that it can with 
greater safety be placed elsewhere, he, for one, would 
willingly concur in the change. The condition of public 
men in this country — there is no danger, in saying this, of 
extinguishing ambition in the heart of man — was far, very 
far from enviable. He who enters into this career, with 
the purpose of devoting himself to the public service, takes 
a vow of perpetual poverty — a vow, too, which he will be 
obliged to keep. Circumstances will extort from him its 
observance, without any extraordinary effort of virtue to 
keep it on his part. Unless he has a private fortune to 
support him, this must be his doom. There are lamenta- 
ble instances in our history to prove it. With poverty he 
must be prepared to bear reproach. If he attain to an ele- 
vated station, he is immediately an object of envy, for that 
which, after all, is not enviable. In times of strong ex- 
citement, of party excitement particularly, he must be 
judged by men who, though they believe themselves just, 
and may be really disposed to be just, yet, cannot be just, 
because they are under the dominion of passion. He must 
be judged by party opponents, in the heat of angry contest. 
It becomes us, then, in the discharge of the functions belong- 
ing to us by the constitution, not to indulge too readily in sus- 
picion and misconstruction of the conduct of a co-ordinate 
branch of the government. Parties exist in this House, and 
in the country. Of all the bad effects of high party feeling, 
there is none more obvious, and none more injurious, than the 



3G0 

disposition to do injustice to each other's motives and inten- 
tions. See how it operates here. We have every induce- 
ment to cultivate a good understanding, and to think well 
of each other. And yet, let what will be before the House, 
unless it be some matter purely local, whatever a member 
says, and whatever he does, is immediately referred to 
party views and motives. If, standing here upon a footing 
of equality, in habits of daily intercourse, and with every 
disposition to maintain relations of mutual kindness and 
respect, we yet cannot escape unjust judgment from 
each other, what chance have those who are separated 
from us by distance and by employment, and whose places 
are the objects of contention 1 This government, as has 
already been said, in all its branches, was instituted by the 
people, and for the people, to promote their own welfare. 
Looking to that purpose, the people true to themselves, will 
test the conduct of the administration by its measures. Are 
those measures such as are calculated to promote the great 
object of government, and such as the people approve? If 
they are, the people, applying the test by which they try 
the conduct of all- public servants, will give them their 
approbation. And why should it not be so ? If the con- 
stitution and the laws have been faithfully executed, if the 
public welfare has been promoted — passion may suggest 
other inquiries, but here upon a very sober estimate they 
must end, and here I believe they will end. 

The gentleman from Virginia, (Mr. Randolph,) assuming 
what yet remains to be decided, that the people had al- 
ready condemned the administration, went on to say, that 
as there was a majority against them in both Houses of 
congress, they ought to retire — that there was no instance 
till that of the younger Pitt, of a minister remaining in 
power when he was in a minority, and he had obtained a 
paricidal triumph over the constitution of his country. Sir, 
said Mr. Sergeant, is there any such analogy between the 
constitution of Great Britain, and the constitution of the 



361 

United States, so that we ought to adopt in this respect, the 
doctrine of England ? There is a hereditary crown. The 
ministry is appointed by the King, and that ministry car- 
ries on the business of the nation by means of a majority 
in parliament, as its instrument. This is the practical 
working of the British constitution. The ministry is gene- 
rally secure of a majority, though for a moment Mr. Pitt 
was without it. In the practice under that constitution, 
every measure originates with the ministry, and the minis- 
ter is to answer for it, and he is to answer too, for its failure. 
If he cannot pass his measures through parliament, what 
happens then ? The crown is placed aloft, to glitter in the 
eyes of the nation, and is not to be disturbed. It is irre- 
sponsible. The king can do no wrong. The minister is 
accountable for every thing. If he cannot wield the power 
of parliament, he must go out, and give place to one who 
can ; and thus the harmony of the constitution is — not re- 
stored — but preserved. How and by what means it hap- 
pens that the minister generally has a majority in parlia- 
ment, we all very well know. That is their government, 
and as it concerns only themselves, if they are satisfied, 
we have no right to object. But, is that the constitution 
of the United States? He would not be guilty of the ab- 
surdity of asking whether we had a hereditary crown, or 
ministers appointed by the crown. He meant to ask and 
to ask seriously, whether it was indispensable to the work- 
ing of our constitution, that the two houses of congress 
and the executive, both deriving their authority from the 
same source, the people of the United States, should be of 
such entire accord that whatever the executive may send 
us shall pass, and whatever he does not send us, shall not 
pass. He had never so understood it. 

Constituted as our government is, he said, he could not 
see with what propriety it could be said that there was a 
majority of this house opposed to the president. He did 
not understand it, speaking the language of the constitution 

46 



362 

of the United States. He understood it perfectly as applied 
to the government of Great Britain. How can there be a 
majority of this house against the president? When, as 
now is the case, an election of chief magistrate is approach- 
ing, there may be a majority of the members who are, in- 
dividually, opposed to the re-election of the president. But 
would a majority of this house, on that account, oppose his 
administration, if right in itself? Would they for that rea- 
son, oppose a measure which he should recommend, sim- 
ply because he recommended it, though it were manifestly 
wise and fit in itself? — That would be factious. It would 
be inconsistent with the sound doctrine of the constitution. 
We do not come here to carry through the measures of the 
executive, as the majority of the house of commons carry 
through the measures of the ministry. Neither do we come 
here to carry on a regular opposition. We have full pow- 
er ourselves to originate plans for the public good, and we 
ought to adopt the recommendations and views of the 
executive when they appear to us conducive to the same 
end. 

It would, indeed be an extraordinary anomaly if a major- 
ity of congress could turn out, or drive out a president during 
the period for which he is elected. So far was this from be- 
ing the case, that the government would work just as well, 
if we could not tell who in this house was for, and who 
was against the administration. Mr. Pitt, it has been said, 
by the gentleman from Virginia, overthrew, or triumphed 
over the constitution, by maintaining his post against a ma- 
jority of the house ; that is, the constitution as it was under- 
stood in practice before that time ; for in theory, such was 
not'the constitution, even of England. But what followed ? 
Mr. Pitt dissolved the parliament, and threw himself upon 
the nation for support. The people approved his measures, 
gave him a majority in parliament; and thenceforth, I 
suppose, according to theory and practice both, he was 
rightfully a minister. As far as our institutions will permit, 



363 

something of the same sort may happen here. Not that the 
people of this country will choose a congress for or against 
a president : that is not the issue. There is an appeal now 
pending before the people ; it is still pending, however the 
gentleman from Virginia may think it already decided ; it 
is yet to be decided by the free voice of the people of the 
United States, at the next election of President. If it should 
be decided differently from what he thinks ; and if, at the 
same time it should happen that members should be sent 
here who, like the present are opposed to the administra- 
tion, still he saw nothing to prevent co-operation in promot- 
ing the public welfare. However that might be, he surely 
would not then contend that the president ought to retire, 
and vacate the place to which he was constitutionally 
elected, because there was a majority of congress against 
him. We all derive our authority from the same source : 
we hold by the same tenure: we are co-ordinate branches 
of the same government, and not any one an instrument 
in the hands of the other; or subjected to the will or pow- 
er of the other. We have not the British constitution. 

He said he was no prophet, and would venture no pre- 
dictions as to the result of that great appeal. If the peo- 
ple of this country should think, with the gentleman from 
Virginia, that military capacity whether in exercise or not, 
was desirable or indispensable, in the head of this govern- 
ment, it might have an influence upon their decision. 

[Mr. Randolph, explained.] 

Mr. Sergeant proceeded. I do not wish to misunderstand 
or mis-state the gentleman from Virginia, and I accept his 
explanation — that he only stated that sagacity and courage, 
and the capacity for managing men, which are necessary 
military talents, are equally necessary in civil affairs. 
Thus understood, it means nothing more than that the 
genius which constitutes a great military man, is a very 
high quality, and may be equally useful in the cabinet and 
in the field ; that he has a sort of universality equally ap- 



364 

plicable to all affairs. We had seen undoubtedly, one in- 
stance of a rare and wonderful combination of civil and 
military qualifications, both of the highest order. Wash- 
ington was equally illustrious in either department. But 
Washington was the production of an age. He belongs to 
an age, and will give it character by his matchless worth. 
When ages shall have rolled away, he will stand still more 
exalted above all those who have so much occupied our 
attention with their bustling and restless ambition. He 
will be remembered when they are forgotten, and his mem- 
ory will continue to be without blot or stain. That the 
greatest civil qualifications may be found united with the 
highest military ones, is what no one will deny who thinks 
of Washington; but that such a combination is rare and 
extraordinary, the fame of Washington sufficiently attests. 
If it were common, why was he so illustrious? 

But let it be remembered, also, that Washington had ex- 
perience in civil as well as military affairs ; and his country 
had experience of him in both. He was a member of the 
Virginia legislature before the revolution. He was a dele- 
gate from Virginia to the first congress. He left his seat in 
congress to take command of his country's army in the field. 
He was a member, and he was the chosen president of the 
convention which formed the constitution of the United 
States. In civil employments, and for high civil qualifica- 
tions, he was well known to his country, before he was in- 
trusted with the high cilice of President of the United 
States, and there was a thorough assurance that he had the 
requisite knowledge, temper, and habits. It is not ques- 
tioned, therefore, that, in Washington, civil and military 
qualifications were combine^ both in the highest degree. 
But the gentleman from Virginia will not deny — no one 
who has read the history, or considered the nature of man 
can deny — that the talent for war may exist without the 
qualifications or acquirements for civil rule — that there may 
be evidence of the one, and no evidence of the other — nay, 



365 

it appears to me to be impossible to deny, that qualities 
which are perfectly compatible with the character of a 
valiant and successful soldier, may be utterly inconsistent 
with the peaceful administration of a republic. I will not, 
he said, detain the House, by entering into a historical dis- 
cussion of Cesar, and Cromwell, and .Napoleon — familiar 
subjects, and well understood — nor will I inquire how far 
their bad example is palliated by the apology which has 
been attempted for them, that they were the offspring of 
the times, and made no change for the worse. Say what 
you will, it cannot alter the fact. But, selecting one of 
them for a moment's consideration, I would ask, what did 
Cromwell do for England, with all his military genius'? He 
overthrew the monarchy, and established dictatorial power 
in his own person. And what happened next ? Another 
soldier overthrew the dictatorship, and restored the mo- 
narchy. The sword effected both. Cromwell made one 
revolution, and Monk another, and what did the people of 
England gain by it? Nothing, absolutely nothing. The 
rights and liberties of Englishmen, as they now exist, 
were settled and established at the revolution in 1G88. 
Now mark the difference. By whom was that revolution 
began and conducted ? Was it by soldiers — by military 
genius, by the sword ? No. It was the work of statesmen, 
of eminent lawyers, never distinguished for military exploit. 
The faculty may have existed; the dormant faculty. That 
is what no one can affirm, and no one can deny. But it 
would have been thought a very absurd and extravagant 
thing to propose, that one of those eminent statesmen and 
lawyers, in reliance upon this possible dormant faculty, 
should be sent afterwards, i 'ead of the Duke of Marlbo- 
rough, to command the English forces on the continent. 
These, then, are the fruits of civil wisdom, which England 
had not gained under Cromwell, nor by the aid of Monk — 
and there they flourish still, as they grew out of the revo- 
lution in 1038, planted by the hands of statesmen. In this 



366 

humble plea for civil qualification, let me advert to another 
and greater, and, to us, much more interesting transaction. 
Who achieved the freedom and independence of this our 
country? Washington effected much in the field. But where 
were the Franklins, the Adams, the Hancocks, the Jeifer- 
sons and the Lees, the band of sages and of patriots whose 
memory we revere? They were assembled in council. 
The heart of the Revolution was in the hall of congress. 
There was the power, which, beginning with appeals to the 
King and to the British nation, at length made an irresist- 
ible appeal to the world, and consummated the Revolution 
by the Declaration of Independence, which Washington, 
clothed with their authority and bearing their commission, 
supported by arms. And what has this band of patriots, 
of sages and statesmen, given to us ? not what Cesar gave 
to Rome, not what Cromwell gave to England, or Napoleon 
to France — they established for us the great principles of 
civil, political and religious liberty, upon the strong foun- 
dations on which they have hitherto stood, and secured for 
us the signal blessings we now enjoy. There may have 
been military capacily in congress. But can any one deny 
that it is to the wisdom of sages, Washington being one, 
we are indebted for many of the best of our enjoyments? 
Look at the condition of the new states of this hemisphere. 
One great cause of disorder, it appears to me, which pre- 
vents them from settling down in peace, is that they have 
no such band of sages to direct their course. Whenever 
you hear of disturbance, it is general against general, 
soldier against soldier — it is the military spirit generated 
by their wars, and not yet sufficiently controlled by the 
councils of peaceful wisdom. 

I will not, he said, be tempted to reflect upon the distin- 
guished soldier who has been honoured, aye, highly honoured 
by his country. Far be it from me, in this plea for civil 
virtues, to detract from his military renown. He has done 
good service. So has his great competitor. I do not pre- 



367 

tend to say what will be the result of the election. But 
this I do know — time will judge us all, and award to every- 
one according to his real merits, undisturbed by the mists 
of prejudice and of passion. — The warrior crown will adorn 
the brow of the soldier, the wreath of civic merit cannot 
be denied to the patriot who has faithfully served his 
country for forty years, without reproach. I would not 
needlessly pluck a leaf from either. 

He would not, he said, have made these remarks, but for 
what appeared to him the bearing of the argument he had 
heard yesterday from the gentleman from Virginia. He 
had occupied more time than he intended, and probably 
dwelt upon some points with tedious minuteness. Here, he 
would leave the matter, thanking the House for its atten- 
tion. He acknowledged a decided opinion and disposition 
to one side of the great question so often alluded to; but 
however strong his wishes were for its success, he did 
not desire needlessly to inflict a wound upon any one. 



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